The Court of Cassation's Position on Error as a Cause of Nullity of Contract

Extract

[...] Initially, the question of violence can be ruled out, only error or deceit remains. Both error and deceit are based on a bad representation of the contractual reality, however, in the first, the error is spontaneous, while for the second, the error is provoked by the co-contractor. Therefore, it seems that there is no maneuver and intention allowing the constitution of deceit. The error is therefore not provoked by the co-contractor of the nurse, but is simply an error on her part. [...]

[...] The Court of Cassation by this consideration explicitly recalls its position on the error on the grounds, by principle it will not be an error that can lead to the nullity of the contract. This position the Court has held for a very long time, since already in a decision of the first civil chamber of August it had come to say that 'the error on the grounds is not a cause of nullity, unless the parties had agreed to make it the condition of their contract'. [...]

[...] The new article 1135 of the Civil Code enshrines this solution without using the notion of 'entry into the contractual field' but the substance remains the same. It provides that 'an error on a simple motive, foreign to the essential qualities of the performance due or of the contractor, is not a cause of nullity, unless the parties have expressly made it a determining element of their consent'. This definition given perfectly illustrates the notion of 'entry into the contractual field', this means that both parties are aware of it and that without this motive they would not have contracted or at substantially different conditions since it makes it a determining element of their consent. [...]

[...] The Court of Cassation, by this clarification, expressly provides an exception to the impossibility that an error on the motives may be a cause of nullity under the heading of error. Simply, this means that if the parties had decided that the motive was an element of the contract, only in this hypothesis could the error on the motives found a request for annulment for error. As the Court of Cassation had already stated on February it will be necessary for the parties to have expressly made the motive a determining element of their consent and therefore only an incorporation of the motive into the contract by an express clause can allow it to be taken into account. [...]

[...] In other words, both parties must have considered essential the quality on which one of them made an error. To describe this solution, we sometimes say that the error must have been 'common' », but yet the two parties are not necessarily going to make a mistake, this simply means that the error of one will be sufficient when the second is aware of the essential, substantial importance that the ultimately failing quality revealed. In this case, it is clear that we are not in this context since the error does not relate to the qualities of the material but to the usefulness that the nurse will derive from it and the inadequacy with her activity, which is moreover what both the Court of Appeal and the Court of Cassation consider. [...]