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Revista de Derecho Privado

versão impressa ISSN 0123-4366


NEME VILLARREAL, Martha Lucía. The error as vice of consent bearing in mind the protection of trust in the celebration of the contract. Rev. Derecho Privado [online]. 2012, n.22, pp.169-218. ISSN 0123-4366.

Abstract 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.

Palavras-chave : error; error excludability; recognizability of error; will; declaration of trust protection; juridical traffic safety; annulment of the contract; vices of consent; self responsibility good faith and fair dealing.

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