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Is a person legally obligated to accept a delivered painting by Manet at the agreed price, even though they actually wanted to buy a painting by Monet? The crucial question is whether a valid contract was formed due to a faulty transmission of the purchase request or whether the purchase can be rejected due to error or lack of authority.

March 3, 2025

Contract law

Open in Omnilex

Error and Representation in the Purchase Agreement

In your case, various aspects of Swiss Obligation Law (OR) are relevant, particularly regarding error and its impact on the validity of the contract, as well as the role of faulty transmission.

1. Essential Error:

According to Art. 23 OR, a contract is void for the party who was in a substantial error at the time of conclusion (Art. 23 OR). This is particularly true if the error relates to the item purchased, namely in your case the painting by Monet instead of Manet. Such an error is deemed essential under Art. 24 para. 1 no. 2 OR if the intent was directed at a different item than declared (Art. 24 para. 1 no. 2 OR).

2. Faulty Transmission:

If the contract was concluded due to a faulty transmission, the provisions regarding error apply accordingly (Art. 27 OR).

3. Converging Will Declaration:

A contract requires a mutually agreeing will declaration from the parties (Art. 1 para. 1 OR). In your case, this agreement was missing as you wanted to acquire a Monet and not a Manet.

Since there is a significant error and the contract was due to faulty transmission, you can invoke that the contract is non-binding and contest it.

Recommendation: You should immediately inform the other party in writing that you consider the contract invalid due to a significant error and faulty transmission (Art. 23 OR in connection with Art. 24 para. 1 no. 2 OR and Art. 27 OR). Please take note of the one-year period for asserting the error (Art. 31 para. 1 OR).

Sources

Art. 24 Para. 1 OR

1 The mistake is particularly substantial in the following cases: 1. when the mistaken party intended to enter into a different contract than the one for which they have expressed their consent; 2. when the will of the mistaken party was directed towards a different object or, if the contract was concluded with regard to a specific person, towards a different person than they expressed; 3. when the mistaken party promised a performance of significantly greater extent or received a counter-performance of significantly lesser extent than was intended; 4. when the mistake concerned a specific fact that was considered by the mistaken party in good faith in commercial dealings as a necessary basis of the contract.

Art. 24 Para. 2 OR

2 If the mistake only relates to the motive for concluding the contract, it is not substantial.

Art. 24 Para. 1 OR

1 The mistake is particularly substantial in the following cases: 1. when the mistaken party intended to enter into a different contract than the one for which they have expressed their consent; 2. when the will of the mistaken party was directed towards a different object or, if the contract was concluded with regard to a specific person, towards a different person than they expressed; 3. when the mistaken party promised a performance of significantly greater extent or received a counter-performance of significantly lesser extent than was intended; 4. when the mistake concerned a specific fact that was considered by the mistaken party in good faith in commercial dealings as a necessary basis of the contract.

Art. 24 Para. 2 OR

2 If the mistake only relates to the motive for concluding the contract, it is not substantial.

Art. 23 OR

The contract is non-binding for the person who was in a significant error at the time of conclusion.

Art. 23 OR

The contract is non-binding for the person who was in a significant error at the time of conclusion.

Art. 27 OR

If an application or acceptance is incorrectly transmitted by a messenger or in another way at the conclusion of the contract, the provisions regarding mistakes shall apply accordingly.

Art. 27 OR

If an application or acceptance is incorrectly transmitted by a messenger or in another way at the conclusion of the contract, the provisions regarding mistakes shall apply accordingly.


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