Учебный год 22-23 / Mistake, Fraud and Duties to Inform in European Contract Law (The Common Core of European Private Law)

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that the goods do not show the qualities agreed upon in the contract (§ 434 I).39 The statuette was sold as a collector’s item. The seller claimed in its catalogue that the item was a product of the Tang dynasty and preserved in its original condition. If it then turns out that the statuette was substantially made up of new parts then it will be at odds with the contractual description of its quality and therefore defective according to the subjective concept of a defect.40

Emile may therefore demand a reduction in the purchase price or termination of the contract. He is free to choose which of the two remedies to apply (§ 462) and -- in accordance with modern opinion -- may claim them immediately and without the seller’s agreement.41

(ii) Emile may also demand damages for non-performance instead of the contract’s termination or a reduction of the price, if the statuette lacks the special qualities guaranteed by the seller (§§ 437 Ziff 3, 440, 280 I, 276 I 1, 443). Up to now,42 the assessment of warranties in the art trade has given rise to a great deal of controversy. Sometimes, the mere description of goods and a correspondingly high purchase price provided sufficient grounds to assume a warranted characteristic.43 The BGH in its Jawlensky Decision44 was of the opinion that including a picture in the catalogue of works by a certain artist may constitute an -- implied -- warranty as to a picture’s origin. On the other hand, the BGH later45 argued that the description of a painting as ‘by the artist’s hand’ was insufficient to be regarded as a warranty relating to authenticity.

39According to the old § 459 it was discussed whether the sold good must be a ‘defect’ according to an objective or subjective standard; cf. for example, W. Flume,

Eigenschaftsirrtum und Kauf (Münster, 1948), pp. 110 ff.; R. Knöpfle, Der Fehler beim Kauf

(Berlin, 1989); Foerste, ‘Der Fehlerbegriff im Kaufrecht’ JuS 1994, 202; Palandt/Putzo, § 459 para. 8 ff.; Soergel/Huber, § 459 para. 32 ff.

40OLG Hamm NJW 1987, 1028: a grandfather clock had been sold as being ‘150--200 years old’ but in fact it consisted -- as the purchaser later found out -- of substantially new replacement parts; OLG Karlsruhe NJW-RR 1993, 1138: in this case an ‘original Harley Davidson’ had been sold (but under the exclusion of warranty claims). The frame of the motorbike had been replaced without using an original Harley-Davidson component.

41Despite § 465 which expresses the theory of contrarius consensus.

42These and the following decisions circle around the old § 459 II, 463, but the problem (if special statements of the seller concerning the quality of the goods can be considered as a guarantee) will be the same according to the new law.

43OLG Frankfurt 1982, 651, 652 = EwiR § 463 BGB 1/93, 659 (with commentary, Braun); similarly (‘echter Perser’) OLG Koblenz MDR 1987, 322 und LG München NJW 1990, 1999.

44BGHZ 63, 369, 372 = NJW 1975, 970.

45In the second ‘Burra-Entscheidung’, BGH NJW 1995, 1673 = JZ 1995, 1015 (with commentary Braun) = LM § 459 BGB No. 124 (with commentary, Grunsky) = ZIP 1995,

However, the fact that the court was reluctant to impose liability to pay compensation in light of the common uncertainty surrounding the authenticity of paintings proved decisive for the judgment.46 Thus, even in older judgments, a certain restraint was demanded when determining the existence of warranties in art trade transactions.47

Emile’s case does not directly concern the authenticity of a work of art but rather the question as to whether the seller has given a guarantee that the item was in its substantially original state. To this extent, the case is comparable to warranties in the sale of used goods, in particular, the sale of road vehicles. Here statements of the seller concerning the age, condition and restoration measures undertaken are sufficient to be regarded as warranties relating to a characteristic because the (usually) inexperienced purchaser ought to be able to rely on the expertise of the road vehicle dealer.48 Emile is also an ‘amateur’ and relies mainly on the statements of the seller (Far Eastern Delights), apparently a professional dealer in Asian artefacts. Thus, the description of the statuette as ‘Tang Dynasty, practically intact with very few restorations’ is not only a contractual agreement and as such decisive for the classification of a poor performance as ‘defective’ but is also a guarantee regarding a characteristic attributable to the object of sale. One may assume that Far Eastern Delights intended to assume a special liability relating to the statuette’s condition.

Emile may therefore demand damages for non-performance together with the contract’s termination or reduction in the purchase price (§ 437 Ziff 2 and 3 BGB). By so claiming, he may demand to be put in the same position as he would have been if the statuette had actually been only partially and diligently restored, as promised.49 He may also demand lost profit (§ 252 BGB) if, for example, in the meantime he could have sold the statuette on at a profit.

(iii) According to leading German academic opinion,50 annulment of the contract for mistake relating to a substantial quality (§ 119 II)

570. Cf. also the first ‘Burra-Entscheidung’ in NJW 1993, 2103; for a critical summary see C. Hattenhauer, JuS 1998, 186 ff.

46BGH NJW 1995, 1674 = JZ 1995, 1017.

47RGZ 114, 239, 241; BGHZ 63, 669, 372; BGH NJW 1980, 1619.

48A good overview of this is offered by: Staudinger/Honsell, § 459 para. 158 f.

49Cf. Palandt/Putzo, § 463 para. 14.

50Herrschende Meinung; vgl. nur Flume, Eigenschaftsirrtum, pp. 132 ff.; Flume, AT II, pp. 484 ff.; D. Medicus, Allgemeiner Teil des BGB. Ein Lehrbuch (6., neubearb. Aufl., Heidelberg, 1994), Rz. 775; Larenz/Wolf, AT 691; Soergel/Huber, Vor § 459 Rz. 187 ff.;

MüKo/Kramer, § 119 Rz. 33 ff.; MüKo/Westermann, § 459 Rz. 74; Staudinger/Honsell, Vor

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is excluded due to the fact that Emile may enforce warranty claims against the seller (see above at pp. 175--6). Because the legal provisions on warranties are regarded as leges speciales in contrast to the law on mistake, annulment of the contract on grounds of mistake ought not to play a role here.51 The main argument in this regard has been that the seller should be secure from claims of the buyer when the 6-months’ period for warranties on moveables had expired. This argument, however, will fall away according to the new law on warranties, which provides a 2-years’ period for claims of the buyer (§ 438 I 3).

(iv) The contract may be void on the grounds of fraudulent misrepresentation (§ 123) if it is understood that Far Eastern Delights made incorrect assertions relating to the statuette knowingly and with the intention to cause Emile to enter into the contract.

Greece

(i) Both the contract of sale (art. 513 AK) and the contract of transfer by which the ownership of the statuette was transferred to Emile (art. 1034 AK) can be annulled for mistake. Emile’s declaration of will was the result of a fundamental mistake as to quality (art. 142 AK). The two criteria, objective and subjective, are present here. Emile’s mistake is objectively fundamental as the statuette’s actual quality is of importance for the whole contract. It is not necessary to show that the parties expressly agreed on the quality of the statuette as a term of the contract. It suffices that parties tacitly agreed on the specific quality or it may be inferred from the preceding negotiations of the parties.52 Here it must be accepted that the condition of the statuette as practically intact has been agreed by the parties. As to the fundamental criterion of mistake it is clear that Emile would not have made the sale had he known of the true situation. The objective difference in value between the object as agreed, a statuette practically intact, and the actual statuette favours recognising the subjective fundamental aspect of Emile’s

§459 Rz. 23 und § 459 Rz. 19; Staudinger/Dilcher, § 119 Rz. 62 ff.; RGRK/Krüger-Nieland,

§119 Rz. 62 ff.; AK/Hart, § 119 Rz. 31; Erman/Brox, § 119 Rz. 6 und 19.

51Fundamentally, BGHZ 34, 32. Now critical however J. Wasmuth, ‘Wider das Dogma vom Vorrang der Sachmängelhaftung gegenüber der Anfechtung wegen Eigenschaftsirrtums’ in W. Erdmann, W. Gloy, R. Herbe (eds.), FS für Henning Piper

(Munich, 1996), pp. 1083 ff.; P. Huber, Irrtumsanfechtung und Sachmängelhaftung

(Tübingen, 2001).

52Spyridakis, General Principles p. 598; Georgiadis, General Principles of Civil Law, p. 426; see also Papachristou AK 141--142 n. 5 III.

mistake.53 Article 145 AK providing for the compensation (negative interest) of the other party is not applicable if it is proved that Far Eastern Delights knew or should have known of Emile’s mistake, that is of the inaccuracy of their own statement.

(ii)The contracts may also be annulled on the grounds of fraud practised by the gallery54 (art. 147 AK). The fact that Far Eastern Delights were specialised in ancient oriental art would help Emile prove the gallery’s fraud. The defendant however can rebut the allegation if it can prove that it believed that its statement as to the statuette’s qualities was true. Fraud occurs with the purpose of creating an erroneous impression. It is obvious that Far Eastern Delights made fraudulent representations in order to induce future purchasers to enter into the sale of the statuette.

If the court accepts mistake or fraud, the contracts are reversed retrospectively and with effects in rem (art. 184 AK). The ownership transferred by the annulled contract reverts ipso jure to Far Eastern Delights. The purchase price will be sought by Emile on the basis of unjust enrichment (arts. 904 ff. AK). If the contracts are annulled on the grounds of fraud, Far Eastern Delights will be liable in damages under the general tort provisions (art. 149 subpara 1 AK). According to the prevailing view,55 the damages will be for the negative interest suffered as a result of relying on the conduct of the other party, for example the expenses, e.g. fees Emile has incurred to conclude the sale.

(iii)The gallery is also strictly liable for the lack of agreed qualities of the thing sold (art. 535 AK). A quality is agreed not only in the case of an express agreement of the parties but also when it is concluded that the parties attached a particular importance to a specific quality.56 The description or advertisement of the quality of the thing does not suffice.57 Whether such an agreement exists is a matter of interpretation

53Bailas, ‘Error as to the Qualities of a Thing’, pp. 352, 353.

54It is assumed that Far Eastern Delights is a legal person. The fraud as well as other subjective factors which have been committed by one of its agents are judged by the person of the agent (arts. 68 § 2, 214 AK by analogy).

55See for example Karakatsanis AK 149 nn. 4, 5; K. Asprogerakas-Grivas, General Principles of Civil Law (Athens-Komotini, 1981), p. 322; Papantoniou, General Principles of Civil Law,

p.413.

56I. Deliyiannis and P. Kornilakis, Law of Obligations. Special Part I (Thessaloniki, 1992),

p.199; Stathopoulos, Contract Law in Hellas, p. 221; Klavanidou, Error as to the Qualities of the Thing in Sales, p. 76; contra Ef of Thessaloniki 138/1978 Arm 32 (1978), p. 228; K. Kafkas, Law of Obligations. Special Part (7th edn, Thessaloniki, 1993) arts. 534--5 § 11.

57Ef of Athens 9057/1986 Dni 28, 1285; Deliyiannis and Kornilakis, Law of Obligations,

p.199; P. Filios, Law of Obligations. Special Part (Athens, 1997), vol. 1/1, § 5 BII; Stathopoulos, Contract Law in Hellas, p. 221.

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of the contract which will be solved on the basis of generally accepted views as to the purpose of the contract.58 Emile can seek termination of the sale, a remedy similar to annulling the contract,59 or the reduction of the purchase price, or damages for non-performance if the vendor is at fault. The damages (for the so-called positive interest) aim to put Emile in the position in which he would have been if the defect had not existed.60

Ireland

In this case Emile would have a remedy under Irish law. There has been an inaccurate statement of fact as to the condition of the statuette which misled Emile into purchasing the piece. Emile has a remedy for breach of contract. He relied on an express guarantee relating to the description of the statuette. The statement is more than a ‘mere puff’. In addition, Emile has a remedy in Irish law under s. 10 of the Sale of Goods and Supply of Services Act 1980 where goods purchased fail to match the description of those goods. Under the statutory provisions, Emile has the remedy of suing for damages for breach of contract or avoiding the contract by rejecting the goods -- O’Connor v. Donnelly.61

Emile also has a further remedy for misrepresentation. Under this head, he has the option of rescinding the contract as he relied on the misrepresentation. Like English law, Irish law requires that he should take steps to rescind the contract within a reasonable time. However, if he can show that the statement by Far Eastern Delights was a fraudulent one, he is entitled to rescind at any time once he discovers the fraudulent nature of the statement. It is also possible for Emile to seek damages under the tort of misrepresentation to cover the losses sustained by him as a result of the misrepresentation. Once again, it would be necessary for Emile to show fraud on the part of Far Eastern Delights.

Unlike Northern Ireland, there is no Misrepresentation Act in Ireland. Accordingly, the position in relation to misrepresentation is governed by the common law. As in England, Irish law requires that Emile should choose his remedy for breach of contract on the one hand or rescission and damages in tort on the other. Under the heading of mistake,

58Deliyiannis and Kornilakis, Law of Obligations, p. 199; Stathopoulos, Contract Law in Hellas, p. 221.

59Restitution has the consequence that the purchaser must return the thing and the vendor the purchase price.

60On the question of whether Emile can choose between defects of consent provisions and remedies for breach of contract, see Case 7.

61(1944) IR Jur Rep 1.

the contract is rendered void ab initio at common law if the mistake as to the quality of the statuette was deemed sufficiently serious and such mistake was shared by both parties. Under the last stringent criteria governing the equitable jurisdiction of the courts, the court might regard the mistake as to quality not to be so fundamental as to render the contract void ab initio at common law but sufficiently serious to render it voidable under equitable principles.

Italy

Emile has several actions against Far Eastern Delights under Italian law: two for defects of consent (mistake and fraud); three for nonperformance of contract (guarantee against latent defects, lack of quality and impossibility).

(i)We are faced with mistake as to the quality of the said object (art. 1429 n. 2 of the Civil Code) and the fact that Far Eastern Delights is a professional dealer (there is a difference in the parties’ status) will easily enable the court to consider the mistake recognisable (riconoscibile).62 Emile’s excusability is not an issue here.

(ii)Far Eastern Delights’ statement should not have been ‘the statuette is partially restored’, but ‘some parts are original’: we are facing a typical situation of fraud (art. 1439 of the Civil Code) see Case 2. The simple falsity of a statement is considered dolus malus and will provoke the annulment of the contract.63 A very interesting case is given by a decision involving the glorious and unlucky Torino Football Club: the purchase of a season ticket was annulled because of fraud, when the club president’s declaration that a certain player would not be sold to another club, turned out to be false.64 When fraud generates a fundamental mistake the plaintiff could be better off choosing mistake instead of fraud. The objective evidence of mistake is easier to adduce than the psychological evidence of fraud.65

Far Eastern Delights could, however, argue that ‘partially restored’ was not a false statement but a ‘dolus bonus’ normally used in those kind of transactions. It must prove that the collectors are cautious of the seller’s

62Pietrobon, Errore, voluntà e affidamento, pp. 220 ff.

63Cass 1996, n. 1955; Cass 1993, n. 10718; Cass 6.12.1984, n. 6409; Cass S Lav 22.12.1983, n. 7572; Cass 17.10.1969 e Cass 30.10.1969, n. 3609 entrambe in GI 1972, I, 1, 456; Cass 8.10.1955 n. 2925 all repeat the following ‘even simple falsity provokes the annulment of contract for fraud when, considering the subjective condition of the party to whom it has been said, it is sufficient to deceive him’.

64Cass 26.1.1995, n. 975. 65 Bianca, Il contratto, p. 628.

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statements in this kind of business.66 In Manifatture Spugne v. Intermarittima the Supreme Court said that in order to decide if there is fraud, the silence or concealment by one party must be considered according to the subjective conditions of the other.67 In that case both parties were experienced business people and the court found no fraud, while in our case Emile seems to be a naive collector. Some authors think that the area for dolus bonus is losing ground following the idea that art. 1337 of the Civil Code and European legislation concerning misleading advertisements are enhancing the degree of intolerance towards any kind of falsity, even the slightest one.68

(iii)There is a guarantee against hidden defects in the thing sold. Article 1490 of the Civil Code states ‘[a] seller is bound to warrant that the thing sold is free of defects which . . . appreciably diminish its value’ (Garanzia per i vizi della cosa). The Italian Supreme Court considers that the factual situation in which ‘the quality of the thing or the characteristics giving it the value’69 are lacking constitutes a standard case of breach of guarantee and because of that reason the object of the contract ‘within the same kind of goods will belong to a lower type of it’.70 In the case of breach, the buyer has to prove that the goods do not have the promised qualities; there is no need to demonstrate any fraudulent behaviour or negligence. Emile can at his choice demand termination of the contract (art. 1453 of the Civil Code) or reduction of the price; the buyer forfeits the right if he fails to notify the seller of the defects within eight days after discovering them.

(iv)Another way to terminate the contract is to prove that the restored statuette is a completely different object from a ‘practically intact statue’. In this case Emile will claim that the statute lacks a fundamental quality (Mancanza delle qualità essenziali),71 according to art. 1497 of the Civil Code

66Cass 1996 n. 3001 and Cass 1960 n. 2119; S. Gentilini, ‘Dolus Malus’ in Enciclopedia Giuridica Treccani (Rome, 1990), at p. 347 and F. Carresi, ‘Il Contratto’ in A. Cicu, F. Messineo and L. Mengoni (eds.), Trattato di Diritto Civile e Commerciale (Milan, 1987), at p. 109.

67Cass 12.1.1991, n. 257.

68Sacco and De Nova, ‘Il contratto’, pp. 436 ff.; Funaioli, I, Enc. Giuridica Treccani.

69Cass 1970, n. 2544. 70 Cass 1982, n. 1839.

71Article 1497 Lack of quality: ‘When the thing sold lacks the qualities promised or those essential for the use for which it is intended, the buyer is entitled to obtain termination of the contract according to the general provisions on termination for non-performance (art. 1453 ff.), provided that the defect in quality exceeds the limits of tolerance established by usage.’

However, the right to obtain termination is subject to forfeiture (2964 ff., 1495 co.1) and prescription (2946 ff., 1495 co.3) established in art. 1495.

this is tantamount to the adage aliud pro alio. The difference between this action and the previous one is considered irrelevant both by the courts and legal scholars.72 Far Eastern Delights will try to bar the claim using the argument that the limit of tolerance (limite di tolleranza) has expired, but the facts will be decisive.73 For example, in Automega s.p.a. v. Pezzillo, the Tribunale, the Court of Appeal of Palermo and finally the Italian Supreme Court74 considered that the sale of a ‘Mercedes Benz 190 with full options’ was defective for a lack of quality since the air conditioning was not an original Mercedes option and had been installed in Palermo.

Actions to annul the contract, based on defective consent (arts. 1441--6 of the Civil Code) and actions based on non-performance (arts. 1490 and 1495 of the Civil Code) are independent and can be concurrent on the same facts.75 As to which action is preferable, factors relating to evidence (fraud is harder to prove) and prescription (5 years for defective consent; time runs from the discovery of the defect; 8 days to notify the seller after discovery of the defect, in any event within one year after the sale) are relevant.

The Netherlands

Far Eastern Delights made statements that turned out to be untrue. If these statements made Emile buy the statuette for the price Far Eastern Delights asked for it -- in other words: if Emile would not have bought this statuette for this price had he known that the statuette was in fact not ‘practically intact with very few restorations’ -- there is a causal link between these statements and the mistake under which Emile has concluded the contract.

(i) In case the conclusion of a contract was caused by mistake (dwaling) and ‘if the mistake is imputable to information given by the other party’, the contract may be annulled by the mistaken party (art. 6:228 BW). Emile may, at his choice, annul the contract in or out of court (art. 3:49 BW). The annulment has retrospective effect (art. 3:53 BW) which leads to the retrospective cancelling of the transfer of property: Emile has never become owner (for lack of title: art. 3:84 BW) whereas the payment made by Emile was, with hindsight, undue and he can

72Cass 1981, n. 247; Cass 1969, n. 3695; Cass 1967, n. 2488; S. Rubino, ‘La Compravendita’ in A. Cicu, F. Messineo and L. Mengoni (eds.), Trattato di Diritto Civile e Commerciale (Milan, 1962), at p. 187; Bianca, Il contratto, p. 589.

73Cass 1995, n. 3550; Cass 1977, n. 4923.

74Trib. Palermo, 7.10.1989; A. Palermo, 7.06.1991; Cass 25.3.1995, n. 3550.

75Cass 1968, n. 1573.

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therefore claim his money back (6:203 BW). The annulment may be avoided by Far Eastern Delights proposing a sufficient adaptation of the price. Cf. art. 6:230 BW, s. 1:76

The power to annul a contract on the basis of arts. 228 and 229 shall be extinguished when the other party in good time proposes to modify the effects of the contract which adequately removes the detriment which the person entitled to annul the contract would suffer by continuing the contract.

On the other hand Emile himself may, instead of annulling the contract, ask for a price reduction. Cf. art. 6:230 BW, s. 2: ‘Furthermore, instead of pronouncing annulment the court may, upon the demand of one of the parties, modify the effects of the contract to remove the detriment.’

(ii) From the statement of facts it is not clear whether Far Eastern Delights knew that the statements they made were untrue. If they did Emile may also annul the contract for fraud (bedrog). See art. 6:44 BW:77

1. A juridical act may be annulled when it has been entered into as a result of threat, fraud or abuse of circumstances. (. . .) 3. A person who induces another to execute a certain contract by intentionally providing him with inaccurate information, by intentionally concealing any fact he was obliged to communicate, or by any other artifice, commits fraud. Representations in general terms, even if they are untrue, do not as such constitute fraud.

If Emile chooses this remedy he will have to establish that Far Eastern Delights gave the wrong information on purpose, which may be difficult. He may have an interest in doing so if he has suffered additional damage which would not be compensated by merely annulling the contract. If fraud is established a claim for damages in tort will easily be accepted since fraud, in principle, constitutes an ‘unlawful act’ in the sense of art. 6:162 BW, the general tort clause.78 Another difference between mistake and fraud is that art. 3:44 BW does not contain a provision similar to the second section of art. 6:228 BW. This means that the possibility to annul a contract for fraud cannot be limited on the ground that ‘given

76Cf. on art. 6:230 BW: M. W. Hesselink, ‘Vragen bij de toepassing van artikel 6:230 BW’, (1995) WPNR 6191--6192, pp. 541--5; 563--7; M. E. M. G. Peletier, Rechterlijke vrijheid en partij-autonomie (diss. VU) (The Hague, 1999), pp. 23ff., and Verbintenissenrecht (Hesselink), art. 230, with further references.

77See on fraud in general Asser/Hartkamp II (2001), nos. 199 ff.; Vermogensrecht (Hijma), art. 44; Rechtshandeling en Overeenkomst (Van Dam) (2nd edn, Deventer, 1998), pp. 208 ff., and on fraud in sales contracts Asser/Hijma 5-I (2001), nos. 253 ff.

78Cf. Asser/Hartkamp II (2001), no. 204; Asser/Hijma 5-I (2001), nos. 253 ff.

the nature of the contract, common opinion or the circumstances of the case, the party in error should remain accountable for its mistake’.

If fraud is established, the effects are similar to those of mistake. However, there is a difference: Far Eastern Delights cannot avoid the annulment by proposing a sufficient price adaptation: with regard to fraud there is no provision similar to art. 6:230 BW. The reason is that the legislator thought it would be unacceptable that a party should be obliged to remain in a contractual relationship with a fraudulent party.79 Most authors are not convinced by this argument and favour application of art. 6:230 BW to fraud by way of analogy.80

(iii) Far Eastern Delights did not give Emile what they promised. Although they gave him the statuette which he had contracted for this statuette did not have the qualities Emile was entitled to expect. Emile was entitled to expect the qualities described in the catalogue.81 Therefore there is a case of non-conformity (art. 7:17 BW).82 Non-conformity constitutes a breach of contract which gives Emile all the specific remedies for consumer sales, sales in general, synallagmatic contracts, contracts in general and obligations (art. 7:22 BW), i.e. specific performance, repair, replacement, right to withhold performance, termination and damages.83

Norway

The Far Eastern Delights catalogue gave an inaccurate description of the statuette which had been sold. When a mistake about the contract offer is created by the other party, one would, in Scandinavian law, consider the situation as a breach of contract. There is a breach of the seller’s legal duty to provide correct information about the object for sale. This duty is purely objective and is not dependent on the seller’s fault.

This duty can (also) be seen as deriving from a principle of interpretation. A contract is entered into based on the actual information given.84

79Parlementaire Geschiedenis, Boek 6, p. 914 (MvA II).

80Cf. Asser/Hartkamp II (2001), no. 481 and Verbintenissenrecht (Hesselink), art. 230, no. 36, with further references.

81Cf. Asser/Hijma 5-I (2001), no. 338.

82See art. 7:17 BW: ‘1. The thing delivered must conform to the contract. 2. A thing does not conform to the contract if it does not possess the qualities which the buyer was entitled to expect on the basis of the contract. The buyer may expect that the thing possesses the qualities necessary for its normal use, the existence of which is not open to doubt, and the qualities necessary for any special use provided in the contract. (. . .)’

83Cf. Asser/Hijma 5-I (2001), nos. 272 ff.

84Kai Krüger admittedly assumes that the misled person can only demand that the reliance loss be returned in such cases; see K. Krüger, Norsk kontraktsrett (Bergen, 1989),