El error como vicio del "consentimiento" frente a la protección de la confianza en la celebración del contrato
The becoming of the tutelage of mistake in the course of the history of our legal tradition illustrates us about the unfounded attempts to overgeneralize the maxima "nulla errantis voluntas" (the will of a mistaken party is void) and on the linkage that the treatment of error has had since...
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| Format: | Article |
| Language: | Spanish |
| Published: |
Universidad Externado de Colombia
2012
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| Subjects: | |
| Online Access: | http://dialnet.unirioja.es/servlet/oaiart?codigo=3962057 |
| Source: | Revista de Derecho Privado, ISSN 0123-4366, Nº. 22, 2012, pags. 169-218 |
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| Summary: |
The becoming of the tutelage of mistake in the course of the history of our legal
tradition illustrates us about the unfounded attempts to overgeneralize the maxima
"nulla errantis voluntas" (the will of a mistaken party is void) and on the linkage that
the treatment of error has had since ancient times, with the requirements of diligence
on the part of those who attempt to deny the validity of the contract, sheltering on
the grounds of their own error, and with the protection of the interests of the party
receiving such statement .
After a short breakage originated in Savigny 's conceptions, we see a return to the
assessment of the effects of the error on the contract that retraces the steps of tradition,
leaving the emphasis on the perspective of the "will" as determining element
of the existence of the contract, to assess the error in the light of the tutelage of
the trust that the party receiving the statement has pinned on the validity of it.
This is without damaging the value of the mandates of good faith and fair dealing
which imposes contemporary consideration on the interests of both parties,
which means equo balance between the concepts of inexcusability of error and the
protection of trust on the one hand, and the nature of recognizable errors and the
events in which reporting it is a must, on the other. All this comes together in the
proper balancing of the full exercise of freedom granted by the autonomy and the
demands of self-responsibility and protection of trust inherent in this exercise. |
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