On the Involvement of the Counterparts in Gross Misunderstandings
Since Article 147 of The Civil Code of PRC and the corresponding judicial interpretation have not clarified whether or not to consider the involvement of the counterparts in the formation of gross misunderstanding,the controversy between"consideration"and"non-consideration"has existed for a long time in the practical and theoretical circles.By comparatively analyzing the reasonableness of the theories held by the"consideration"and"non-consideration"in the disputed issue,it can be seen that,in the case of expressive mistakes,it lacks morality and efficiency support to make the expressor of intent bear the risk of mistakes,and therefore,regardless of whether the counterpart is involved or not,the expressor of intent should be recognized as having the right to revoke mistakes.On the other hand,in the case of motivated mistakes,the viewpoint of natural mistakes as the cause of relief is contrary to the context of the institution of gross misunderstanding,and replacing it with the participation of the counterparts as the requirement of revocation of motivated mistakes is not only more appropriate in the allocation of risk,but also able to fill the gaps in the system of current law.From the perspective of legal dogmatics,the distinction between expressive and motivated mistakes still has normative value,and the principle of revocability of expressive mistakes should be maintained,while the revocability of motivated mistakes should be limited to the involvement of the counterparts.In addition,while the"consideration theory"inherently called for fault-based liability for damages after revocation,the fault of the expressor of intent should be interpreted broadly in order to protect the interests of the participation of the counterparts.
Gross Misunderstanding Mistakes in ContractInvolvement of the CounterpartsExpressive MistakesMotivated Mistakes
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