Error (dwaling)

Error is the ground on which a contract concluded under a mistaken assumption can be annulled. Dutch law does not protect every mistake: it protects the party whose mistake can be traced back to the conduct of the other side, or to an assumption both shared.

Legal basis

Article 6:228 of the Dutch Civil Code recognises three situations. First, where the error is due to information given by the other party, unless that party could assume the contract would have been concluded anyway. Second, where the other party knew or ought to have known of the mistake and should have informed the mistaken party. Third, where both parties proceeded from the same incorrect assumption.

Paragraph 2 excludes annulment where the error relates exclusively to a future circumstance, or where it should remain for the account of the mistaken party given the nature of the contract, prevailing views or the circumstances of the case.

Duty to inform against duty to investigate

The two duties meet in almost every case. As a rule the duty to inform prevails: a seller who knows of a defect cannot rely on the buyer’s failure to discover it. But a buyer who was pointed towards a problem and did not look into it will find the mistake attributed to them, and the same applies to a professional buyer in their own field.

The remedies

Annulment has retroactive effect and can be effected by an out-of-court declaration. Article 6:230 offers an alternative that is often more useful: instead of annulling, the court may adjust the effects of the contract to remove the disadvantage, and the other party may itself propose such an adjustment to avert annulment.

Where it goes wrong

Error is frequently invoked where the real complaint is that the goods do not conform, which is a matter for Article 7:17 and has its own, shorter time limits. Choosing the wrong ground can cost the claim. The other recurring problem is delay: annulment on the ground of error is subject to a three-year limitation period running from the discovery of the mistake.