Något om misstag inom avtalsrätten : särskilt om gränsdragningen mellan förklaringsmisstag och motivvillfarelse
According to Swedish contract law, a mistake in contract can be categorized as either an error concerning the content of the agreement or an error in motive. An error concerning the content of the agreement could be described as a divergence between a party’s intent and his declaration, while an error in motive is a mistake about the reasons why a party would like to agree to the contract. The borderline between these two types of mistakes is based on Savigny’s theories on echt (error in motive) and unecht (error in content) mistakes.
The law thus states a clear and specific borderline separating these two types of errors from each other. However, this borderline has not been upheld by the courts. Instead the courts, on numerous occasions (e.g. AD 98/1980, NJA 1939 s. 384 och NJA 1991 s. 509), have failed to correctly determine whether a mistake should be considered an error concerning the content or an error in motive. Most of the judgements are very unclear and have caused confusion among scholars and lawyers.
In this thesis, the leading cases with regard to the borderline are thoroughly analyzed. Further, three different ways of clarifying the borderline are identified, as well as examined. The thesis also discusses different theories on mistake in contract, particularly the relationship between 32 § avtalslagen and the doctrine of assumptions.
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