Comparative View on Hidden Vices and Vices of Consent (Error, Fraud) in the Hypothesis of the Sales Contract

Comparative View on Hidden Vices and Vices of Consent (Error, Fraud) in the Hypothesis of the Sales Contract Lecturer Laurenţiu DRAGU1 PhD. student Denise MARTALOG2 Abstract The study that we will undertake is going to capture a comparative analysis of the aspects related to the vices of consent (error and fraud) and hidden vices. In practice, in the case of a sales contract, the same situation can be classified both in the category of hidden vices and in the category of consensual vices (error or fraud). So, the problem that arises in such cases is: can the buyer opt either for the liability action for hidden vices, or for the nullity in action for error or fraud, or is he obliged to promote only one of them? Specifically, the research aims to highlight the possibility that a circumstance can be qualified simultaneously as both a hidden vice and a vice of consent, also providing clarifications for the practical solution of this situation. Keywords: hidden vice, consensual vice, error, fraud, liability action for hidden vices, action for annulment for vices of consent. JEL Classification: K15, K22 1. Introduction The freedom of the subject of law to dispose of his own assets by concluding transferable acts (including sales contracts) is conditioned by the observance, at the time of the act, of some conditions of substance and, if necessary, of form, expressly imposed by the legislator 3. Ignoring the conditions of validity will make the act in question null. On the other hand, if the conditions stipulated by the law are met, the act will be valid, generating rights and obligations for the parties who consented to it. Non-compliance with the obligations generated by the act, by not executing them or executing them late, will attract the debtor's contractual liability4. Thus, if during a sale the consent of the buyer is "given by mistake or surprised by fraud" (art. 1206 Civil Code), the contract is struck by relative nullity, as its conditions of validity are not respected. On the other hand, when such conditions are met, including those regarding consent that must be "... knowingly expressed" (art. 1204 Civil Code) - an aspect that excludes error or fraud, the consent not being affected in its character intellectual, conscious - but the good presents hidden vices, the sale will be valid, but opening the way for the buyer to take action in liability for the hidden vices. In this sense, in the specialized literature, it was shown that "Vices of consent must be distinguished from the legal mechanism that tends to ensure the execution of the contract: contractual liability, resolution for non-execution, guarantee against hidden vices, guarantee against eviction5" or "Between error and hidden vice there are essential differences: in the case of the error on the substance of the object (error in substantiam), because of this vice of consent, the buyer could not buy in its substance the intended asset and can demand the annulment of the contract; instead, in the case of the vices referred to in art. 1707 Civil Code, the buyer bought the desired good, only it is unsuitable for the intended use or due to vices the use or value is reduced - so the error refers only to the quality of the asset -, and the buyer cannot ask for the cancellation of the contract, but has an action under 1 Laurenţiu Dragu - Police Academy „Alexandru Ioan Cuza”, Romania, . 2 Denise Martalog - Bucharest University of Economic Studies, Romania, . See Saul Litvinoff, Vices and Consent, Error, Fraud, Duress and an Epilogue on Lesion, „Louisiana Law Review”, vol. 50, no. 1, September 1989, pp. 6, 7. 4 See also Zimmermann, Reinhard, 'Emptio Venditio III', The Law of Obligations: Roman Foundations of the Civilian Tradition, Oxford, 1996; online edn, Oxford Academic, 22 Mar. 2012, https://doi.org/10.1093/acprof:oso/9780198764 267.003.0010, accessed 5 Nov. 2022. 5 F. Terre, Ph. Simler, Y. Lequette, Droit civil. Les obligations, 10e edition, Dalloz, Paris, 2009, p. 263. 3 Perspectives of Law and Public Administration Volume 12, Issue 1, March 2023 32 warranty against the seller" 6. In substance, such statements are able to lead to the practical solution of most factual situations that could generate doubts in terms of their qualification. However, there may be cases in which the distinction between the vice of consent, of error, or fraud and the hidden vice of the asset is not as clear as the ground on which it is located would make it clear: the conclusion of the contract (in the case of vices of consent), respectively the effects of the contract (in case of hidden vices). Thus, it is necessary to delimit and outline the two concepts, vice of consent (of error and fraud) and hidden vice of the sold asset7. 2. Comparative view on hidden vices and vices of consent The error finds its seat of matter in art. 1207 8 - 1213 Civil Code and is defined in doctrine9 as the false representation of reality at the conclusion of a civil legal act. The legislator establishes that the act is defeasible only if "the party ... at the time of concluding the contract, was in an essential error" (art. 1207 paragraph 1 Civil Code), the error being essential, according to art. 1207 para. 2 point 2 of the Civil Code, including when the false representation of reality concerns the substance of the asset, bearing on "...a quality of it or on another circumstance considered essential by the parties without which the contract would not have been concluded". Although, traditionally, the substance of the good was viewed from an objective perspective, confusing it with the material from which the good was made10, we note that the provisions of art. 1207 para. 2 point 2 of the Civil Code11 indicates a subjective assessment criterion regarding the substance, i.e. a circumstance considered essential, in the absence of which the contract would not have been concluded 12. Thus, compared to the provision contained in art. 1207 para. 2 points 2 Civil Code, the substance must not be limited to the material from which the good is made, but it represents that quality of the good that led the party to contract and which represented for him the impulsive and determining cause of the contract 13. In other words, by the substance of the good we must understand that quality of it that the person in error had in mind at the time of concluding the contract, the one that was decisive for the expression of his will and whose absence, if he had known, would have led him not to contract14. Looking at the substance of the good from such a perspective, the distinction between error and hidden vice no longer appears to be so obvious, especially when the error is determined by the existence of a hidden vice that makes "the good unsuitable for the use for which it is intended or that diminishes the use or value to such an extent that, if he had known them, the buyer would not have bought or would have given a lower price" - art. 1707 para. 1 Civil Code. 6 Fr. (...truncated)