The doctrine of error in Scotland and the South African Republic

Abstract

The article presents the results of a comparative-legal analysis of the doctrine of error at the contract conclusion in the mixed jurisdictions of Scotland and the South African Republic. The jurisdictions in question were significantly influenced by the continental civil law tradition as well as the common law tradition. The civil doctrine was taken as the basis for the formation of the doctrines of error in the law of Scotland as well as in the law of South Africa and subsequently underwent the influence of common law. In view of this similar doctrine development, both systems face similar problems: namely, the development of criteria for distinguishing a significant error from an insignificant one, as well as determining the exact amount of exemption from obligations assumed by a party to the contract under the influence of a significant error. Thus it is of interest to consider how the mixed nature is reflected in the doctrine of error, to the formation of which legal structures it has led to and to compare how each of the considered jurisdictions manage to solve similar problems arising. The author established a legal analysis of the mixed systems of Scotland and South Africa Republic, noting their proximity. The main issues of the doctrine of error are analysed, in particular, the content of the concepts of “material error” and “justus error” in the law of South African Republic, and the concepts of “essential error” / “error in substantialibus”, as well as “but for” test in Scottish law. The influence of the introduction of misrepresentation (in the terminology of English law) on the doctrine of error (mistake in the terminology of English law) in the legal jurisdictions of Scotland and South Africa is considered. Also the legal consequences of a significant error are analysed. Despite the lack of clear established legal consequences of the significant error in the legal jurisdictions in question, Scottish law stands for voidness, while South African law tends toward voidability.