Definir el costo del paquete turístico a implementar

Savigny’s will theory fits in well with the strong protection of the autonomy of the individual in German law.374 _{The private autonomy of individuals is expressed by} the German phrase of ‘Selbstgestaltung durch Selbstbestimmung’ – ‘self-design through self-determination’ which leads to the conclusion that should there be any flaw in the process of self-determination, then the declaration loses the main

373_{Markesinis, Unberath and Johnston, The German Law of Contract: A Comparative Treatise (2nd}

edn, Hart Publishing 2006), p.265; Staudinger, Kommentar zum Bürgerlichen Gesetzbuch mit

Einführungsgesetz und Nebengesetzen §§ 90 - 124; §§ 130 - 133 (Allgemeiner Teil 3) (14th edn,

Sellier de Gruyter 2014) § 119 RN 2.

374 _{In fact the German constitution protects the autonomy of the individual: Art. 2 Grundgesetz: ‘(1)}

Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Recht anderer und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetzt verstößt. (2) Jeder hat das Recht auf Leben und körperliche Unversehrtheit. Die Freiheit der Person ist unverletzlich. In diese Rechte darf nur auf Grund eines Gesetztes eingegriffen werden. Translation: (1) Every personal shall

have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. (2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.’ See also Ch. 2.02 on general norms and their relationship to

116 reason for the legal effect of the declaration.375 _{Stepping back for a moment from} the idea of mistake, the protection of the will must begin earlier in the contracting process, something that Savigny also discussed.376 _{So what happens if the party} never had the intention of entering a contract at all? The famous ‘Trier Wine Auction’377 _{example comes to mind, where the buyer attends a wine auction and}

during the auction waives to a friend. The auctioneer interprets the waiving as the highest bid. On the basis of the will theory there can never have been a declaration since he never ‘willed’ to make any such declaration. In other words there would be no contract and therefore no reason to compensate the auctioneer under §122 BGB.

The difficulty with the approach in the Trier Wine Auction378_{caseis that objectively}

there seemed to be a declaration and the other party (just as in von Jhering’s examples) may have expended money on the belief that there was a contract. In the Bank Guarantee Case’379_{the bank sent a letter to a firm, confirming that it had}

guaranteed the debts of one of their customers. The firm then attempted to enforce that guarantee against the bank and the bank had to admit that they had provided an incorrect statement of fact and that they had no subjective intention of

375 _{Staudinger, Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen}

§§ 90 - 124; §§ 130 - 133 (Allgemeiner Teil 3) (14th edn, Sellier de Gruyter 2014); § 116 RN 3.

376 _{Savigny, System des heutigen Roemischen Rechts, vol 3 (Veit und Comp 1840), p. 258.}

377 _{Beale and others, Contract Law: Ius Commune Casebooks for Common Law of Europe (2nd edn,}

Hart Publishing 2010), p. 453-454.

378 _Ibid.

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entering into a contract. The court held that even if the party did not intend to consent to enter into the contract he will be held to have expressed his consent if he knew or should have known that the other party would (and in fact did) believe

it to be valid consent.380 _{This fits well with the analysis of von Jhering of fault at the}

contractual stage. The proof of fault was that they must have (or should have known) that their statement would be received as consent and are therefore bound by the contract. The objection that could be raised here is that the will is not

adequately protected. This is when § 119 BGB provides the protection of the parties will in that the moment the other party notices that they have made a mistake they can rescind the contract. If the other party has incurred a loss through the reliance on the statement (back to von Jhering) the mistaken party will have to compensate for the reliance loss through § 122 BGB. The court’s argument therefore was that the private autonomy of the individual was sufficiently protected by § 119 BGB because the self-design is not only predicated on the protection of the will of the

individual but also on the trust of the other party.381 _{In contrast then to the Trier}

380 _{Ibid, at 71: ‚Eine Willenserklärung liegt bei fehlendem Erklärungsbewußtsein allerdings nur dann}

vor, wenn sie als solche dem Erklärenden zugerechnet werden kann. Das setzt voraus, daß dieser bei Anwendung der im Verkehr erforderlichen Sorgfalt hätte erkennen und vermeiden können, daß seine Erklärung oder sein Verhalten vom Empfänger nach Treu und Glauben und mit Rücksicht auf die Verkehrssitte als Willenserklärung aufgefaßt werden durfte […]‘.

381 _{Ibid, at 70: ‘Das Recht der Willenserklaerung baut nicht nur auf der Selbstbestimmung des}

Rechtstraegers aud; es schuetzt […] das Vertrauen des Erklaerungsempfaengers und die Verkerhssicherheit […]‘.

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Wine Auction case382 _{it seems like the courts have moved away from the strict}

application of the will theory on the basis that the private autonomy is protected through the law of mistake.

The bank guarantee case383_{also added a second layer to the law of mistake. They}

held that the contract could only be rescinded if the erring party brings the error to the attention of the other party without delay. The court therefore concluded that § 119 (1) BGB could not apply in this scenario due to the delay (two weeks)

between the party knowing that they were mistaken and informing the other of the mistake. The reason was that according to § 121 (1) BGB the bank had a duty to rescind the contract without undue delay and had failed to comply.

Coming back to the actual mistake cases, where it is clear that the mistaken party meant to make a declaration but did not mean to make that declaration and the other party knew that, the joint will (rather than the declaration) will prevail. In the

Rubel case384_{a loan had been provided in roubles but was to be repaid in marks. An}

error was made in calculating385 _{the exchange rate and the wrong amount was} entered into the contract. The court held that the parties clearly meant to contract on the basis of the actual rate on that day and it was therefore a case of falsa

382 _{Beale and others, Contract Law: Ius Commune Casebooks for Common Law of Europe (2nd edn,}

Hart Publishing 2010), p. 453-454.

383_{BGHZ 91, 324 (Bank Guarantee) .}

384_{RGZ 105, 406 (Rubel Case) a similar case is LG Kleve WM 1991, 2060 (Dinare case) .}

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demonstration non nocet.386 _{This principle is generally used to rectify agreements in} which both parties did not express in the contract what they actually meant. In the ‘Shark Meat’ case387 _{for example the buyer and seller thought they were}

contracting for the sale/purchase of whale meat when they used the word ‘Haakjoeringskoed’, the Norwegian word for shark meat. The court held that the parties had really meant to contract for whale meat and amended the document accordingly. This principle of falsa demonstration non nocet, though not part of § 119 BGB, serves to demonstrate the supremacy of the will over the declaration of the will.

Preliminary conclusion

Ch. 4.2 showed how the will theory developed and later became entrenched in the BGB. There is therefore the historic and dogmatic reasoning for the existence of the principle as a fundamental part of the German system and therefore a fundamental element of the legal thought (and as such a value). However, the balance between impeaching on the other’s rights (as was shown in Ch. 4.2 as the limit of the individual’s freedom) and protecting the reasonable reliance seems to have been struck through the notion of ‘fault’. The understanding of what fault is seems to have developed out of the principle of culpa in contrahendo as developed by von Jhering. It is the reliance of the non-mistaken party on the declaration of the other

386 _{This does not apply to all cases of error in calculation. Compare for example RGZ 101, 107 (Silver}

case) or BGHZ 139, 177 .

120 that must be protected when there is no contract or when there has been a

mistake.388

The conclusion therefore must be that the protection of each party’s will is a fundamental value (expressed through principles such as falsa demonstration non nocet). However, each party’s will is not protected equally, as it would seem that the emphasis in the German cases is the protection of the mistaken party’s will and the non-mistaken party’s will (to contract) is only protected as to the reliance interest. A further value which is expressed through the protection of the will is the autonomy of the individual (expressed through the strong protection from

contracts). Ch. 4.4 will look at the specific instances in which § 119 (1) BGB is used and the relationship to § 122 BGB. It will confirm the conclusion that the focus is on the protection of the will and the need for the reliance based compensation of the non-mistaken party as a consequence.