In this paper it will be made an effort to compare the German and English position in the situation where two parties to a contract have actually reached consensus but gave their agreement an outwards wrong expression by using a wrong name for the subject-matter of contract.
In a first step, the general positions in both jurisdictions will be presented and afterwards, as a practical application of the functionalist approach, it will be sought to determine if the English law would have reached the same outcome if it would have to decide a prominent German court decision by reference to comparable English cases.
Table of Contents
1 Introduction
2 German Law
2.1 Requirements for a valid contract
2.2 The method of the interpretation of a contract (Auslegung)
according to §§ 133, 157 BGB
2.3 The distinction between the method of interpretation (§§ 133, 157 BGB) and
recission (§§ 142 et seq, 119 BGB) as a remedy
2.4 Falsa demonstratio non nocet
3 English law
3.1 Requirements for a valid contract
3.2 The method of interpretation of a contract
3.3 The distinction between the method of interpretation and recission
4 The common identical error as to the content of the declaration (error in nomine) in
German and English law
5 The functionalist test of similar or different results in German and English Law
5.1 German law: The Haakjöringsköd case
5.2 English law’s solution to similar cases
5.3 Conclusion from both national approaches in practice
6 Conclusion
Research Objectives and Themes
This paper examines how English and German law handle contractual scenarios where both parties reach consensus, yet erroneously designate the subject matter using an incorrect name. It aims to determine if both jurisdictions achieve equivalent practical outcomes despite their differing doctrinal approaches and legal interpretations.
- Comparative analysis of contract interpretation rules in German and English law.
- Evaluation of the "falsa demonstratio non nocet" principle and its functional equivalents in England.
- Investigation into the distinction between contract interpretation and rescission/rectification.
- Practical functionalist test using the prominent "Haakjöringsköd" case and English counterparts like "Rose v Pim".
Excerpt from the Book
5.1 German law: The Haakjöringsköd case
In the Haakjöringsköd case which the German Imperial Court (Reichsgericht) had to decide on June 8th 1920, the question was whether a purchaser of certain goods has the right to redhibitory action (Wandelung), if the goods do comply the description enclosed to the sales contract, but do not comply the diverging but congruent will of the parties.
On November 18th 1916, the defendant sold the plaintiff “approximately 214 barrels of “Haakjöringsköd” shipped ex steamship Jessica for 4,30 marks per kilo cif Hamburg net cash against bill of lading and insurance policy (Kannossement)”. At the end of November the plaintiff paid the defendant, on delivery of the documents, the purchase price intended in the provisional invoices. When the goods arrived in Hamburg, they were distrained upon, and shortly thereafter taken over, by the central purchasing private limited company (Zentral-Einkaufsgesellschaft mbH) of Berlin.
The plaintiff argued that the goods had been sold to him as whale meat (Walfischfleisch), whereas they were shark meat (Haifischfleisch). As whale meat, they would not be subject to distraint. He claimed that the defendant, which had delivered goods not in conformity with the contract, was subsequently liable to reimburse to the difference between the purchase price and the considerably lower price paid by the central purchasing private limited company upon taking over the goods. He sought payment of 47 515, 90 marks.
Summary of Chapters
1 Introduction: This chapter outlines the paper's goal to compare the German and English legal positions regarding contractual consensus when an incorrect name is used for the subject matter.
2 German Law: It details the requirements for a valid contract under the BGB, focusing on the interpretative rules of §§ 133 and 157 BGB and the principle of falsa demonstratio non nocet.
3 English law: This chapter covers the English requirements for a valid contract, the methods of interpretation influenced by "laissez faire" philosophy, and the legal remedy of rectification.
4 The common identical error as to the content of the declaration (error in nomine) in German and English law: The chapter explores how both systems maintain agreements based on the parties' true intentions rather than erroneous wordings.
5 The functionalist test of similar or different results in German and English Law: Through case analysis (Haakjöringsköd and Rose v Pim), this chapter demonstrates that both legal systems achieve nearly identical practical outcomes.
6 Conclusion: The final chapter summarizes that despite different doctrinal instruments, both systems effectively uphold the true intention of the parties in cases of common error in nomine.
Keywords
Contract law, interpretation, error in nomine, falsa demonstratio, German Civil Code, BGB, English Common law, consensus, intention, rectification, rescission, comparative law, Haakjöringsköd, Rose v Pim, contractual liability.
Frequently Asked Questions
What is the core subject of this paper?
The paper focuses on how the legal systems of Germany and England address situations where contracting parties reach a common consensus but mistakenly identify the subject matter of the contract using an incorrect term.
What are the primary themes discussed?
Central themes include the theory of contract interpretation, the role of subjective will versus objective declaration, the "falsa demonstratio non nocet" principle, and the remedy of "rectification" in English law.
What is the ultimate goal of this research?
The primary goal is to determine whether German and English law produce similar outcomes when dealing with identical errors in contract naming, despite relying on different historical and procedural frameworks.
Which scientific method does the author employ?
The author utilizes a comparative legal methodology, applying a "functionalist test" by comparing how both jurisdictions handle specific historical court cases to see if their doctrinal differences lead to divergent results.
What content is covered in the main section?
The main section details the specific German interpretative rules (§§ 133, 157 BGB), the English rules of contract interpretation, and the distinction between interpretation and remedies like rescission and rectification.
Which keywords best characterize this work?
Key terms include contract law, error in nomine, falsa demonstratio, intention, rectification, consensus, comparative law, BGB, and contractual interpretation.
How does German law resolve the issue of common error?
German law primarily uses the interpretative rules of §§ 133 and 157 BGB to balance subjective and objective elements, applying the maxim "falsa demonstratio non nocet" to ensure the contract aligns with the parties' true, shared intention.
How does English law handle such errors?
English law relies on the doctrine of "rectification" to revise written documents when they fail to accurately record the parties' prior agreement, effectively giving priority to the parties' true intention over the literal wording.
What does the "Haakjöringsköd" case demonstrate?
It serves as a paradigm for the German application of "falsa demonstratio non nocet," showing how a court can uphold a contract for whale meat even when the parties mistakenly used a term that translated to shark meat.
Do the two systems reach different results?
No; the author concludes that while the mechanisms (such as codification vs. equitable remedies) differ, both legal systems consistently reach identical results by prioritizing the parties' true intent over the erroneous contract text.
- Quote paper
- Miriam Nabinger (Author), 2006, The common error in nomine, Munich, GRIN Verlag, https://www.grin.com/document/87047
