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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

Federal Act of March 30, 1911, concerning the amendment of the Swiss Civil Code (Fifth Part: Law of Obligations) > First Section: General Provisions > First Title: The Origin of Obligations > First Paragraph: The Origin through Contract > F. Defects of Conclusion of Contract > I. Mistake > 1. Effect

Art. 23 CO

The contract is not binding for the party who was in a significant mistake at the time of conclusion.

Federal Act of March 30, 1911, concerning the amendment of the Swiss Civil Code (Fifth Part: Law of Obligations) > First Section: General Provisions > First Title: The Origin of Obligations > First Paragraph: The Origin through Contract > F. Defects of Conclusion of Contract > I. Mistake > 1. Effect

Art. 23 CO

The contract is not binding for the party who was in a significant mistake at the time of conclusion.

Art. 24 Abs. 1 OR

1 The mistake is particularly substantial in the following cases: 1. when the person mistaken intended to enter into a different contract than the one for which they expressed their consent; 2. when the intention of the person mistaken was directed towards a different object or, if the contract was concluded with respect to a specific person, towards a different person than the one they declared; 3. when the person mistaken promised a performance of significantly greater scope or allowed themselves to be promised a counter-performance of significantly lesser scope than they intended; 4. when the mistake concerned a specific fact that was considered by the person mistaken, in good faith in business dealings, as an essential basis of the contract.

Art. 24 Abs. 2 OR

2 If, on the other hand, the mistake only relates to the motive for the conclusion of the contract, it is not substantial.

Art. 24 Abs. 1 OR

1 The mistake is particularly substantial in the following cases: 1. when the person mistaken intended to enter into a different contract than the one for which they expressed their consent; 2. when the intention of the person mistaken was directed towards a different object or, if the contract was concluded with respect to a specific person, towards a different person than the one they declared; 3. when the person mistaken promised a performance of significantly greater scope or allowed themselves to be promised a counter-performance of significantly lesser scope than they intended; 4. when the mistake concerned a specific fact that was considered by the person mistaken, in good faith in business dealings, as an essential basis of the contract.

Art. 24 Abs. 2 OR

2 If, on the other hand, the mistake only relates to the motive for the conclusion of the contract, it is not substantial.

Federal Law of March 30, 1911 concerning the Supplement to the Swiss Civil Code (Fifth Part: Law of Obligations) > First Section: General Provisions > First Title: The Origin of Obligations > First Subsection: The Origin by Contract > F. Defects in the Conclusion of the Contract > I. Error > 5. Incorrect Transmission

Art. 27 OR

If an offer or acceptance is incorrectly transmitted by an agent or in another way when concluding a contract, the provisions regarding error shall apply accordingly.

Federal Law of March 30, 1911 concerning the Supplement to the Swiss Civil Code (Fifth Part: Law of Obligations) > First Section: General Provisions > First Title: The Origin of Obligations > First Subsection: The Origin by Contract > F. Defects in the Conclusion of the Contract > I. Error > 5. Incorrect Transmission

Art. 27 OR

If an offer or acceptance is incorrectly transmitted by an agent or in another way when concluding a contract, the provisions regarding error shall apply accordingly.


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