Philosophari necesse est, sed paucis: Juristisches und philosophisches zum Irrtum bei Vertragsschluss

Résumé 0

Most Romanists who studied the role of mistake in the formation of a contract are puzzled by the fact that both unilateral and common mistakes should cause dissensus. Another surprise is the distinction between mistake as to the material of a thing and mistake with regard to its qualities. Today we are used to think different: common mistakes create consensus, the same thing can be made of different materials which is a question of quality. These two different questions have one thing in common: the Roman view has been influenced by contemporary philosophy and thereby developed quite peculiar solutions. This contribution aims at identifying the legal and the philosophical grounds of the Roman solutions in order to show that philosophy is only the background for thorough legal arguments. The starting point is D. 18,1,9; 11, 14 (Ulp. 28 ad Sab.) which has been discussed vividly by Romanists (especially German Romanists) in the last decades.