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Part IV Validity, 19 Consequences of Mistake, Fraud, and Duress

From: Global Sales and Contract Law

Ingeborg Schwenzer, Pascal Hachem, Christopher Kee

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 09 May 2021

Subject(s):
Termination/unwinding of contract — Damages and contract — Breach of contract

19  Consequences of Mistake, Fraud, and Duress

  1. A.  General Remarks 19.01

  2. B.  Rescission 19.06

    1. I.  Requirements for Rescission 19.08

      1. 1.  Notice by Party v Judicial Declaration 19.09

      2. 2.  Other Potential Requirements 19.11

    2. II.  Bars to Rescission 19.12

      1. 1.  Confirmation 19.13

      2. 2.  Expiration of Time 19.16

      3. 3.  Good Faith, Rectification, and Adaptation 19.22

      4. 4.  Equally Culpable Conduct 19.23

  3. C.  Effects of Rescission 19.24

    1. I.  Whole v Partial Rescission 19.24

    2. II.  Restitution 19.25

      1. 1.  Restitution in Kind or Money in Lieu 19.26

      2. 2.  Fruits of Performance 19.27

  4. D.  Damages 19.28

(p. 235) A.  General Remarks

19.01  The consequences of mistake, fraud, and duress are considered together because the principal remedy is identical—the ‘victim’s’ right to render the contract (or in some cases the contract term) void ab initio. There are however differences in relation to the availability of a claim for damages.

19.02  It might also be said that mistake, fraud, and duress can additionally be distinguished from the other topics discussed in this part of this text insofar as they are considered to directly impact the true will of a party. This statement is subject to two caveats. First, as noted earlier there is some debate as to whether duress is considered on the basis of an ‘overborne will’ or alternatively as simply a matter of ‘illegitimate pressure’.1 Secondly, as discussed below, it is not always clear that matters such as gross disparity and unconscionability are not also vices of consent.2 However, notwithstanding those caveats it is not controversial to group these topics together.

19.03  It should also be recalled that misunderstandings which so affected a party’s awareness that there cannot be said to have been a meeting of the minds should not be treated as mistakes but rather matters of contract formation.3 Where those misunderstandings are discussed in the context of mistake it is sometimes said that the result is a void contract.4 This text does not adopt that approach, preferring instead the analysis that the contract has never been formed and such there is nothing to be considered void.5

19.04  As explained above, common law misrepresentation is discussed in this text under the broader comparative concept of mistake.6 Many of the factual scenarios which would fall under misrepresentation in the common law are addressed as mistake by the civil law. However within (p. 236) common law jursidictions the distinction is made because of the consequences of the two aspects of the law. Nowadays, a number of common law jursidictions have enacted legislation regulating aspects of a misrepresentation.7 These Acts typically address innocent misrepresentation.8

19.05  As a concluding general remark, it is important to briefly note the possibility that remedies for mistake, but not fraud or duress, can be contractually waived in many legal systems. This issue is considered separately as part of a broader discussion on the effectiveness of exclusion and limitation clauses.9

B.  Rescission

19.06  In all jurisdictions the principal remedy available to a mistaken, defrauded, or coerced party is to rescind the contract such that it is treated as having never existed.10 This right to rescind should not be confused with the right to avoid given in relation to a breach of contract.11 In the latter circumstance the non-breaching party has contractual claims. In the current instance the claims cannot arise from contract, because the contract itself is said not to exist. For this reason different terminology is frequently, albeit inconsistently, used by the different jurisdictions.12 This text adopts the terminology of ‘rescission’.

19.07  In common law jursidictions which have not statutorily amended the remedies for misrepresentation, there is a now generally dismissed argument that the sale of goods Acts have however restricted the availability of rescission. The sale of goods legislation typcially explicitly leaves untouched the common law rules regarding misrepresentation.13 At common law there must be a ‘complete difference in substance’ to entitle rescission for innocent misrepresentation.14 The position is different under equity.15 Early decisions from courts in both New Zealand16 and Australia17 took the view that the wording of the respective savings provisions did exclude the operation of equity, and thus rescission for an innocent mispresentation was not available. But other courts in the same jursidictions have rejected the distinction and there seems no reason now why it should be made.18

I.  Requirements for Rescission

19.08  Although it may appear self-evident the most important requirement for rescission is awareness. While this will not be an issue in cases of duress, it does allow for an interesting policy (p. 237) observation in the situations of mistake and fraud. The victim must realize they are in fact a victim otherwise the contract is valid and given full effect.19

1.  Notice by Party v Judicial Declaration

19.09  A party wishing to avoid the contract must make a declaration or give notice to that effect. There are considerable differences amongst the jurisdictions as to how that is done. In many instances, including in the uniform projects, it will be sufficient for the victim to independently give notice to the co-contractant whereupon the contract is rescinded.20 There is debate in a number of jurisdictions concerning whether the declaration must explain the reasons on which the rescission is based21—as has been noted above,22 it is quite possible for there to be circumstances of both fraud and mistake in particular. It is clear however, as reflected in the uniform projects, that the notice must be unequivocal in its meaning and received by the co-contractant.23 It seems likely that the last requirement, receipt by the co-contractant, may need some flexibility as in cases of fraudulent or mistaken identity the rogue may well have disappeared.

19.10  In other jurisdictions the declaration of rescission is made either by the commencement of judicial proceedings or by the judge as a consequence of judicial proceedings.24

2.  Other Potential Requirements

19.11  In a relatively small number of jurisdictions the possibility of full restitution may be considered a requirement for rescission.25 This may at first appear to raise difficulties where the goods have been consumed or on-sold, in the latter case giving rise to third party rights. However in reality it is not likely to be problematic. Certainly amongst the civil law jurisdictions which adopt this position, and likely among the common law ones as well, where full restitution is not available through no fault of the victim effective rescission is still permitted.26 If the goods are consumed or on-sold before the fraud or mistake is revealed there should be no fault on the part of the victim.27

II.  Bars to Rescission

19.12  Rescission is subject to certain ‘bars’. As a generalization it can be said that there are typically two bars: (i) confirmation and (ii) expiration of time. Good faith and the co-contractant’s (p. 238) rectification may also effectively be a bar to rescission in some cases of mistake and fraud. A fourth bar which examines the culpability of the party seeking rescission relates only to instances of fraud.

1.  Confirmation

19.13  Just as a party is given the right to rescind the contract, so too it has the right to confirm the contract.28 However, whereas some jurisdictions require judicial intervention for rescission, confirmation can, it would seem, in all cases be done unilaterally by the victim.29 As reflected in the uniform projects, confirmation can be by express statement or by conduct in virtually all legal systems.30 Implicitly to confirm by conduct, the victim must be aware (or treated as if aware)31 of the mistake or fraud or nor longer consider themselves subject to duress. The confirmation retroactively removes the defect of consent and establishes the validity of the contract.32

19.14  Interestingly a small number of jurisdictions impose certain formal requirements when confirmation is made by an explicit declaration, chiefly that the confirmation be in writing,33 or that it comply with any formalities required by the contact itself.34 This is particularly interesting because these jurisdictions, despite these form requirements, also appear to recognize confirmation by conduct.

19.15  In common law jursidictions which have not statutorily amended the consequences of misrepresentation, there may be an issue as to whether acceptance of the goods equates to a confirmation which would then bar rescission.35 However, this proposition has been rejected elsewhere and does not appear correct.36 In a similar vein in common law it has been said that performance of a sales contract does not bar rescission for misrepresentation,37 although it would in other types of sales contracts.38

(p. 239) 2.  Expiration of Time

19.16  Like all other validity rules that serve to protect the individual party rather than the society or legal system as a whole, the right to rescind a contract for mistake, fraud, or duress is limited by time—both in the context of prescription and laches.

19.17  Aside from offering different time periods jurisdictions also adopt different approaches to when the time period begins. Those jurisdictions which commence the time period when the victim becomes aware, or should reasonably have become aware, of the mistake or fraud are commonly described as adopting the ‘relative approach’. In contrast those jurisdictions which commence the time period based on some fixed and identifiable event (contract conclusion, date egregious clause asserted, etc) are said to employ an ‘absolute approach’. Jurisdictions adopting the relative approach typically also have an ultimate bar—that is, a time after which even if the victim is unaware the ability to avoid the contract is lost. It is unusual for a jurisdiction to place any time limit on a victim’s ability to raise mistake, fraud, or duress as a defence.39

19.18  In cases of mistake the time limits provided by those jurisdictions adopting the relative approach vary enormously and are impossible to generalize. Some jurisdictions use descriptions of time periods such as ‘within a reasonable time’40 or ‘without undue delay’.41 Other jurisdictions adopt stated numerical time periods such as days,42 although more usually years.43 Most jurisdictions opting for the absolute approach in cases involving mistake start the clock at the point of contract conclusion. The time allowed is generally more consistent ranging from two to four years.44

19.19  When dealing with fraud the jurisdictions can again be divided into the relative45 and absolute approaches.46

(p. 240) 19.20  In contrast, probably due to the fact that by definition a victim must be aware of the duress, jurisdictions commonly adopt an absolute time period. However, like mistake, the time periods vary considerably.47

19.21  It should be noted that the periods described here are the generally applicable periods. Special legislation may exist in jurisdictions altering these time frames in particular circumstances, the most likely of which is in relation to consumer transactions.

3.  Good Faith, Rectification, and Adaptation

19.22  Where the consequences of the mistake can be corrected by the co-contractant, and the co-contractant is prepared to do this, it would be contrary to notions of good faith for the mistaken party to be permitted to rescind the contract.48 It has been suggested that this could be applied analogously to instances of fraud.49 The extension to fraud does seem reasonable in connection with those instances of fraud that might be described as less offensive. However, it would also be subject to being in fact capable of rectification which, with mistake, seems almost always possible, but with fraud is likely to be less frequent.

4.  Equally Culpable Conduct

19.23  A number of jurisdictions deny both parties the opportunity to rely on fraud, and thus rescind the contract where both have deceived each other.50 This however does not appear compatible with the view that fraud is a defect of consent, and as such is not a particularly widely adopted or modern position.51

C.  Effects of Rescission

I.  Whole v Partial Rescission

19.24  In many instances rescission of the whole contract is not a desirable outcome for the party whom rescission is intended to protect. Instead they will have a greater interest in a partial rescission which directly acts on only the egregious terms. The possibility of limiting rescission in this way is clearly the preferable modern approach recognized by the uniform projects52 (p. 241) and some53 but not all jurisdictions.54 Recognizing partial rescission does have a potential impact, although relatively minor, on restitution—the appropriateness of restitution will depend on the particular term or terms rescinded.55

II.  Restitution

19.25  The retroactive effect of rescission means that the parties should be restored to the position they were in before the conclusion of the contract.56 Thus, the parties can demand of each other and must return their respective performances.

1.  Restitution in Kind or Money in Lieu

19.26  As a basic proposition the buyer must return the goods delivered and the seller must return the purchase price. This is, however, not always possible or practical. It was observed above that goods may be consumed or on-sold to third parties, and that in some jurisdictions this might preclude restitution. However, in this circumstance most jurisdictions simply require that the value of the goods be returned.57 There appears to be some difference amongst jurisdictions as to how and when the value of the goods is calculated; for example in many, but seemingly not all, jurisdictions a seller is entitled to be compensated for the deterioration of goods, and similarly a buyer receives compensation for any improvements.58

2.  Fruits of Performance

19.27  A more difficult issue is when the goods have been used to generate profit or some sort of additional value. Here there appear to be some significant differences between jurisdictions. For example, pursuant to French law a bona fide buyer retains possession of the fruits.59 In contrast in the Ibero-American jurisdictions the parties must return not only the goods but also the fruits. So a seller must reimburse the purchase price plus interest, and a buyer must provide (p. 242) compensation for products derived directly from the goods, or profits obtained from exploiting the goods for financial advantage.60

D.  Damages

19.28  The topic of damages is considered separately in Chapter 44. In particular the notions of reliance loss (negative interest) and expectation loss (positive interest) are explained and discussed.61 It is however appropriate to briefly identify certain key points regarding the interrelationship between mistake, fraud, and duress.

19.29  As a first step it is necessary to identify which party is seeking damages. As noted previously during the course of the discussion of mistake, some jurisdictions in certain circumstances, provide for compensation to be paid to the non-mistaken party where the contract has been rescinded.62

19.30  However, where it is the mistaken party, it is clear that there will be no entitlement for a simple uninduced mistake in most if not all jurisdictions. In some instances this is an asserted rule,63 whereas in others it is inferred by omission.64 In either case, however, the particular facts or circumstances may still give rise to a claim for damages where the mistake has been induced. Thus, for example, there may be other tortious activity, such as fraud or culpa in contrahendo.65 In common law jursidictions which have statutorily amended the law of misrepresentation, a right to damges is typically expressly provided.66 It appears that in all systems where they are available, whether grounded on the basis of mistake or otherwise, such damages will generally not be precluded by either confirmation or rescission.67

19.31  As a final observation it is interesting to note that as part of the 2010 amendments, the PICC now specifically include a provision entitling a claim for compensation for expenses reasonably required to preserve or maintain the performance received.68

Footnotes:

1  See para 18.26.

2  See paras 21.05, 21.23.

3  See on the formation of contracts generally Ch 10.

4  See eg USA § 163, Comment (c) Restatement (2d) of Contracts.

5  See Part III generally.

6  See para 17.07.

7  See eg Aus (SA) Misrepresentation Act (1972) (but not in all states); Eng Misrepresentation Act (1967); Nzl Contractual Remedies Act (1979); Irl ss 43–6 Sale of Goods and Supply of Services Act (1980); Sgp Misrepresentation Act (1993); Wal Misrepresentation Act (1967); Zmb Misrepresentation Act (1968).

8  But see Nzl s 6 Contractual Remedies Act (1979) which also addresses fraudulent misrepresentation.

9  See para 44.295.

10  There is some authority in Che which suggests the contract is in fact valid only with ratification rather than voidable, BGer, 7 June 1988, BGE 114 II 131, 143 (Picasso case). However this has been widely criticized and more recent case law can be interpreted as implicitly rejecting that position, see BGer, 21 February 2003, BGE 129 III 320, 326.

11  See para 47.05.

13  Aus (Vic) s 4(2) SGA; Can (BC) s 73(1) SGA; Eng s 62(2) SGA; Hkg s 62(2) SGO; Irl s 61(2) SGA; Nzl s 60(2) SGA; Sco s 62(2) SGA; Sgp s 62(2) SGA; Wal s 62(2) SGA.

14  Eng Kennedy v Panama New Zealand and Australian Royal Mail Co Ltd (1867) LR 2 QB 580 at 587.

15  See eg Common Law (Eng) Goldsmith v Rodger [1962] 2 Lloyd’s Rep 249.

16  Nzl Riddiford v Warren (1901) 20 NZLR 572 (CA). See also Taylor v Combined Buyers Ltd [1924] NZLR 627; Holmes v Burgess [1975] 2 NZLR 311 at 317.

17  Aus Watt v Westhoven [1933] VLR 458 (SC); Hynes v Byrne (1899) 9 QLJ 154 (SC).

18  Aus Graham v Freer (1980) 35 SASR 424 (SC); Nzl Thomas Borthwick and Sons (Australasia) Ltd v South Otago Freezing Co Ltd [1978] 1 NZLR 538.

19  See Kramer/Probst, § 11-280 discussing the academic debate on this issue.

20  Art 3.2.11 PICC; Art 4:112 PECL; Art II-7:209 DCFR; Common Law (UK) Chitty on Contracts, para 6-111; Che Art 31(1) CO; Deu § 143 CC; Isr s 20 (General Part) CL; Jpn Art 123 CC; Kor Art 142 CC; Nld Art 3:49 CC; Pol Art 88 CC.

21  See Kramer/Probst, § 11-288 discussing this issue and identifying various jurisdictions. See also PICC, Vogenauer/Kleinheisterkamp/Huber, Art 3.14 (2004), para 4.

22  See para 18.26.

24  Alb Art 94 CC; Arg Art 1048 CC; Arm Art 313 CC; Aut OGH, 27 November 2002, 3Ob131/02i; Koziol et al/Bollenberger, § 871, para 19; Ben Art 1117 CC; Bfa Art 1117 CC; Blr Art 180 CC; Bol Art 546 CC; Bra Art 177 CC; Caf Art 1117 CC; Chl Art 1684 CC; Civ Art 1117 CC; Cmr Art 1117 CC; Cog Art 1117 CC; Col Art 1743(1) CC; Ecu Art 1727 CC; Egy Arts 120, 126 CC; Esp Art 1302 CC; Fra Art 1117 CC; Gab Art 1117 CC; Geo Arts 72, 81, 85 CC; Gin Art 1117 CC; Grc Art 147 CC; Gtm Arts 1309, 1310 CC; Ita Arts 1441(1), 1442(1) CC; Lbn Art 233 CO; Lby Arts 120, 126 CC; Ltu Art 1.91 CC; Mda Arts 230–2 CC; Mdg Art 1117 CC; Mex Art 2230 CC; Mli Art 1117 CC; Ner Art 1117 CC; Pan Art 1142 CC; Per Art 222 CC; Prt Art 291(1) CC; Pry Art 356(2) CC; Rus Art 179 CC; Slv Art 1554 CC; Tcd Art 1110 CC; Tgo Art 1117 CC; Ven Art 1.146 CC.

25  Common Law (UK) Chitty on Contracts, para 6-115; Esp Art 1314(1) CC; Pan Art 1149(1) CC; Phl Art 1401 CC.

26  Esp Art 1314(1) CC; Pan Art 1149(1) CC; Phl Art 1401 CC.

27  See by way of example the discussion in USA Vickers v Gifford-Hill & Co, US Ct App (8th Cir), 4 May 1976, 534 F 2d 1311.

28  Art 3.2.9 PICC; Art 4:114 PECL; Art II-7:211 DCFR; Common Law Benjamin’s Sale of Goods, para 12-006; Arm Art 310 CC; Aut Koziol et al/Bollenberger, § 871, para 22; Aze Art 345 CC; Ben Art 1338 CC; Bfa Art 1338 CC; Bgr Art 35 CO; Blr Art 176 CC; Bol Art 558(1) CC; Bra Art 172 CC; Caf Art 1338 CC; Che Art 31 CO; Chl Art 1684 CC; Civ Art 1338 CC; Cmr Art 1338 CC; Cog Art 1338 CC; Col Art 1743(1) CC; Deu § 144 CC; Dza Art 100 CC; Ecu Art 1727 CC; Egy Art 139 CC; Esp Art 1311 CC; Fra Art 1338 CC; Geo Art 63 CC; Gin Art 1338 CC; Hun Art 236(4) CC; Irl Clark, p 336; Ita Art 1444 CC; Jpn Art 122 CC; Kgz Art 191 CC; Kor Art 143 CC; Lby Art 139 CC; Mdg Art 1338 CC; Mex Art 2233 CC; Mli Art 1338 CC; Ner Art 1338 CC; Nga Yakubu, para 201; Nld Art 3:55(1) CC; Pan Art 1146 CC; Per Art 230 CC; Phl Art 1392 CC; Prt Art 288 CC; Pry Art 366 CC; Rus Art 175 CC; Sgp Halsbury’s Laws of Singapore/Low Kee Yang, para 80.207; Slv Art 1554 CC; Tcd Art 1338 CC; Tgo Art 1338 CC; Tjk Art 200 CC; Tkm Art 88 CC; Ukr Art 222 CC; Uzb Art 118 CC; Ven Art 1351 CC.

29  See eg Arg Art 1054 CC; Esp Art 1312 CC; Pan Art 1147 CC; Pry Art 370 CC; Ven Art 1351(1) CC.

30  Art 3.2.9 PICC; Art 4:114 PECL; Art II-7:211 DCFR. See also Kramer/Probst, §§ 11-296 et seq discussing numerous jurisdictions.

31  The circumstances where a party is treated as being aware will lead to situations of constructive confirmation which may occur eg where there has been a significant lapse of time.

32  Arg Art 1065 CC; Bol Art 558(3) CC; Deu MünchKommBGB/Busche, § 144, para 8; Dza Art 100 CC; Esp Art 1313 CC; Gtm Art 1307 CC; Mex Art 2235 CC; Pan Art 1148 CC; Phl Art 1392 CC; Prt 288(4) CC; Pry Art 371 CC.

33  Bgr Art 35(1) CO; Hun Art 236 CC; Ita Art 1444 CC.

34  Arg Art 1062 CC; Chl Art 1694 CC; Col Art 1753 CC; Ecu Art 1738 CC; Gtm Art 1305 CC; Per Art 232 CC; Pry Art 368 CC; Slv Art 1565 CC; Ven Art 1351(1) CC.

35  See eg dicta in Eng Long v Lloyd [1958] 1 WLR 753 (CA).

36  Aus Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381 (NSWSC).

37  Aus Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381 (NSWSC). See also eg Aus (SA) s 6(1)(b) Misrepresentation Act (1972); Eng s 1(b) Misrepresentation Act (1967); Irl s 44(b) Sale of Goods and Supply of Services Act (1980); Sgp s 1(b) Misrepresentation Act (1993); Wal s 1(b) Misrepresentation Act (1967); Zmb s 2(b) Misrepresentation Act (1968).

38  Common Law (Eng) Seddon v North Eastern Salt Co Ltd [1905] 1 Ch 326 (CA).

39  However for disallowance see Art 4:112 PECL Official Comment; Art II-7:209 DCFR; von Bar/Clive, vol I, p 519. Fra Civ 3, 10 May 2001, D 2001.3156, note Lipinski (exception de nullité can be raised as defence in perpetuity based on ‘quae temporalia’; Civ 1, 17 June 2010, no 09-14.470 Dalloz actualité, 1 July 2010, obs X Delpech (exception de nullité can be raised provided that no performance of the obligations has occurred, it being applicable only where there is ‘nullité relative’, that is the contract is voidable).

40  Art II.7:210 DCFR; USA § 381 Restatement (2d) of Contracts. It should be noted that statutory limitation periods may also be present and applicable, see eg Aus (NSW) s 14 Limitations Act (1969) (6 years); Sco s 8 Prescription and Limitation (Scotland) Act (1973).

41  Deu § 121(1) CC.

42  Mex Art 2236 CC (60 days).

43  Arg Art 4.030 CC (2 years); Aut § 1487 CC (3 years); Bel Art 1304 CC (10 years); Bol Art 556 CC (5 years); Che Art 31 CO (1 year); Chn Art 55 PRC CL (1 year); Fra Art 1304 CC (5 years); Hun Art 236(1) CC (1 year); Nld Art 3:52 CC (3 years); Pol Art 88 CC (1 year); Prt Art 287(1) CC; Svk Art 101 CC (3 years) but Art 397 Com C (4 years); Svn Art 99 CO (1 year); Ven Art 1346 CC (5 years).

44  Bra Art 178 CC (4 years); Chl Art 1691(1) CC (4 years); Col Art 1750(1) CC (4 years); Ecu Art 1735(1) CC (4 years); Esp Art 1301 CC (4 years); Gtm Art 1312 CC (2 years); Per Art 2001(4) CC (2 years); Slv Art 1562(1) CC (4 years).

45  Arg Art 4.030 CC (2 years); Arm Art 317 CC (1 year); Aut § 1478 CC (30 years); Ben Art 1304 CC (5 years); Bfa Art 1304 CC (5 years); Blr Art 182 CC (3 years); Bol Art 556 CC (5 years); Caf Art 1304 CC (5 years); Che Art 31 CO (1 year); Chn Art 55 PRC CL (1 year); Civ Art 1304 CC (5 years); Cmr Art 1304 CC (5 years); Cog Art 1304 CC (5 years); Deu § 124 CC (1 year); Fra Art 1304 CC (5 years); Gab Art 1304 CC (5 years); Geo Art 84 CC (1 year); Gin Art 1304 CC (5 years); Grc Art 157 CC (2 years); Kaz Art 162 CC (1 year); Kgz Art 199 CC (1 year); Lux Art 1304 CC (5 years); Mdg Art 1304 CC (5 years); Mli Art 1304 CC (5 years); Ner Art 1304 CC (5 years); Nld Art 3:52 CC (3 years); Pol Art 88 CC (1 year); Prt Art 287(1) CC (1 year); Rus Art 181 CC (1 year); Tcd Art 1304 CC (5 years); Tgo Art 1304 CC (5 years); Tjk Art 206 CC (3 years); Ukr Art 258 CC (5 years); Ven Art 1346 CC (5 years).

46  Bra Art 178(2) CC (4 years); Chl Art 1691(1) CC (4 years); Col Art 1750(1) CC (4 years); Ecu Art 1735(1) CC (4 years); Esp Art 1301 CC (4 years); Gtm Art 1312 CC (2 years); Ita Art 1442 CC (5 years); Per Art 2001(4) CC (2 years); Slv Art 1562(1) CC (4 years).

47  Common Law North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd, The Atlantic Baron [1979] QB 705 (approximately 8 months); Arg Art 4030 CC (2 years); Arm Art 317 CC (1 year); Aut § 1487 CC (3 years); Bel Art 1304 CC (10 years); Ben Art 1304 CC (5 years); Bfa Art 1304 CC (5 years); Blr Art 182 CC (3 years); Bol Art 556 CC (5 years); Bra Art 178(1) CC (4 years); Caf Art 1304 CC (5 years); Che Art 31 CO (1 year); Chl Art 1691(1) CC (4 years); Chn Art 55 PRC CL (1 year); Civ Art 1304 CC (5 years); Cmr Art 1304 CC (5 years); Cog Art 1304 CC (5 years); Col Art 1750(1) CC (4 years); Deu § 124 CC (1 year); Ecu Art 1735(1) CC (4 years); Esp Art 1301(1) CC (4 years); Fra Art 1304 CC (5 years); Gab Art 1304 CC (5 years); Geo Art 89 CC (1 year); Gin Art 1304 CC (5 years); Gtm Art 1313 CC (1 year); Hun Art 236(1) CC (1 year); Kaz Art 162 CC (1 year); Kgz Art 199 CC (1 year); Mex Art 2237 CC (6 months); Mdg Art 1304 CC (5 years); Mli Art 1304 CC (5 years); Ner Art 1304 CC (5 years); Nld Art 3:52 CC (3 years); Pol Art 88 CC (1 year); Prt Art 287(1) CC (1 year); Rom Art 9 Decree no 167/1958 (3 years); Rus Art 181 CC (1 year); Slv Art 1562(1) CC (4 years); Tcd Art 1304 CC (5 years); Tjk Art 206 CC (3 years); Tgo Art 1304 CC (5 years); Ukr Art 258 CC (5 years); Ven Art 1.346 CC (5 years).

48  Art 3.2.10 PICC; Art 4:105 PECL; for the PECL see also Busch et al/van Rossum, p 203; Art II-7:203 DCFR; Afg Art 568 CC; Are Art 195 CC; Aut OGH, 15 May 1997, 1Ob27/97w, Koziol et al/Bollenberger, § 871, para 22; Bhr Art 87 CC; Che Art 25(2) CO; Deu MünchKommBGB/Busche, § 142, para 16; Dza Art 85 CC, Mansour, p 121, Filaly, pp 120, 121; Egy Art 124(2) CC, Al Sanhuri/Al Maraghy, p 121; Geo Art 77 CC; Isr s 14(c) CL (General Part); Jor Art 156(2) CC; Kwt Art 149 CC, Abdel Reda/Al Nakas, p 87; Lby Art 124(2) CC; Nld Art 6:230 CC, Busch et al/van Rossum, p 198; Syr Art 125(2) CC, Sawar, pp 98, 99.

49  See Kramer/Probst, § 11-323 citing others.

50  See eg Arg Art 932 CC; Bhr Art 93 CC; Chl Art 1458 CC (implicitly); Esp Art 1270(1) CC; Geo Art 83 CC; Gtm Art 1262 CC; Kwt Arts 155, 1462 CC; Lva Art 1462 CC; Mex Art 1646 CC; Pan Art 1121 CC; Per Art 213 CC; Phl Art 1344 CC.

51  See further Kramer/Probst, § 11-328.

52  Art 3.2.13 PICC; Art 4:1116 PECL; Art II-7:213 DCFR.

53  See eg for Scandinavia von Bar/Clive, vol I, p 528; Arm Art 316 CC; Aut Koziol et al/Bollenberger, § 870, para 7 (regarding fraud and duress); Aze Art 352 CC; Blr Art 181 CC; Bra Art 184 CC; Che Art 20(2) CO; Chn Art 56 PRC CL, Zhang, p 192; Deu only with regard to separable parts of the contract in terms of § 139 CC, BGH, 5 April 1973, NJW (1973), 1278, Staudinger/Roth, § 142, para 26; Egy Art 143 CC; Grc Art 181 CC; Gtm Art 1308 CC; Hun Art 239(1) CC; Isr s 19 CL (General Part); Ita Art 1419 CC; Kaz Art 161 CC; Kgz Art 198 CC; Lby Art 143 CC; Mac Art 285 CC; Mex Art 2238 CC; Nld Art 3:41 CC; Per Art 224(1) CC; Prt Art 292 CC; Rus Art 180 CC; Tha Art 173 CCC; Tjk Art 205 CC; Twn Art 111 CC; Ukr Art 217 CC; Vnm Art 135 CC.

54  Notably the Eng De Molestina v Ponton [2001] 1 All ER (Comm) 587 and arguably the common law jurisdictions more generally. It should also be noted that an egregious clause may in some circumstances simply be considered unenforceable thereby effectively amounting to partial rescission.

56  Art 3.2.15 PICC; Art 4:115 PECL; Art II-7:212 DCFR (issue governed by rules of unjustified enrichment); General Kramer/Probst, §11-334 suggesting probably all jurisdictions; Arg Art 1052 CC; Arm Art 304 CC; Aut § 1432 CC, Koziol et al/Koziol, § 1432, paras 4 et seq; Blr Art 168 CC; Bra Art 182 CC; Che Art 62 CO; Chl Art 1687 CC, Chn Art 61 GPCL; Art 56 PRCCL; Col Art 1746(1) CC; Cub Art 71 CC; Deu § 812 CC; Staudinger/Roth, § 142, para 31; Ecu Art 1737 CC; Esp Art 1303 CC; Gtm Art 1314 CC; Jpn Art 121 CC; Kaz Art 159 CC; Kgz Art 184 CC; Khm Art 358 CC; Kor Art 141 CC; Mac Art 282 CC; Mex Art 2239 CC; Nga Yakubu, para 204; Nld Art 6:203 CC; Pan Art 1154 CC; Phl Art 1398 CC; Prt Art 289(1) CC; Pry Art 361 CC; Rom Dincă, para 214; Rus Art 167 CC; Sgp Halsbury’s Laws of Singapore/Law Kee Yang, para 80.205; Slv Art 1557 CC; Tha Art 176 CCC; Tjk Art 192 CC; Tkm Art 97 CC; Twn Art 114 CC; Ukr Art 216 CC; Uzb Art 114 CC; Vnm Art 137 CC.

57  General Kramer/Probst, § 11-335; Art 3.2.15(3) PICC.

58  See eg Common Law Benjamin’s Sale of Goods, para 12-007; Chl Art 1687 CC; Col Art 1746(1) CC; Deu deterioration: only if buyer received surrogates (especially insurance payments), § 818(1) CC, improvements: Jauernig/Stadler, § 812, para 80; Ecu Art 1737 CC; Fra Civ 1, 25 May 1992, Bull civ I, no 165, Cass Com, 7 March 1995, Bull civ IV, no 69; Gtm Art 1316 CC; Slv Art 1557 CC.

59  Fra Arts 549, 550 CC: a bona fide buyer does not know there is a defect in its title.

60  Arg Art 1053 CC; Aut OGH, 14 June 1996, 3Ob550/95; Koziol et al/Koziol, § 1432, para 7; Chl Art 1687 CC; Col Art 1746(1) CC; Deu § 818(1) CC; Ecu Art 1737 CC; Esp Art 1303 CC; Gtm Art 1315 CC; Mex Art 2240 CC; Pan Art 1154 CC; Prt Art 289(1) CC; Pry Art 361 CC; Slv Art 1557 CC.

61  See para 14.124.

62  See para 17.31.

63  Common Law (UK) Chitty on Contracts, para 6-094; Benjamin’s Sale of Goods, paras 10-010, 12-002. Note also that duress’s equitable counterpart, undue influence, does not give rise to damages either.

64  See eg Che Art 31(3) CO; Kramer/Probst, § 11-111.

65  See Ch 25.

66  See eg Aus (SA) s 7 Misrepresentation Act (1972); Eng s 2 Misrepresentation Act (1967); Nzl s 6 Contractual Remedies Act (1979); Irl s 45(2) Sale of Goods and Supply of Services Act (1980); Clark, p 339; Sgp s 2 Misrepresentation Act (1993); Wal s 2 Misrepresentation Act (1967); Zmb s 3 Misrepresentation Act (1968).

68  Art 3.2.15(4) PICC.