ds_gen N. 6 – 2007 – Note & Rassegne


AZezekaloPictError in Russian civil Law: Brief Overview of Legal Regulation from the Standpoint of Certainty and Stability of Business Relations


Alexander Zezekalo

Katanov State University of Khakassia




One of the most important problems in the sphere of legal relations is the problem of certainty. The problem of certainty of law acquires the highest significance with respect to the regulations, which deal with evaluative notions. An illustrative example is provided by the rules, concerning the so-called “relevant” or “essential” error. Error, which can serve grounds for invalidation of legal transaction.

It’s common knowledge, that in cases of invalidation error (or mistake) acts negatively, being a cause of elimination of legal consequences, that is why, the correct assessment of it’s relevance is extremely important for any legal system and Russian civil law is not an exception.

Trying to trace the historical background of the issue in focus, one can notice that, unfortunately, Russian civil law traditionally suffers from disadvantages as concerns the issues of error in transaction.

The main source of the private law of the imperial czar’s Russia, the famous 1st part of the Volume X of the Body of Laws of the Russian Empire contained rather poor regulations regarding error in transaction. It’s enough to mention that it’s provisions passed the error over in silence, that is why the vital importance acquired the official interpretations of the highest judicial agency — the Russian Ruling Senate. And even though the latter commented, that error and mistake also can serve grounds for invalidation of legal transactions, this could not eliminate that certainty gap, which appeared due to the absence of concrete rules and regulations in this sphere.

The situation did not change much in the Soviet period, though direct indications of error had already appeared in legal texts. But, for instance, the Art. 32 of the 1922 RSFSR Civil Code did not go beyond the general principle of taking error into account, and stated that every transaction concluded under the influence of relevant error could be invalidated at the claim of the party in error. The problem of certainty remained open, because the article did not provide any single criterion for assessing the relevance of mistake. Similarly, the Art. 57 of the subsequent RSFSR Civil Code, which appeared in 1964, also left the decision about relevance of mistake to the discretion of the court. Such approach obviously ignored all the achievements of the error doctrine. Nevertheless, being twice reproduced in the Soviet civil codes, it become a kind of characteristic of the socialist legal order.

In fact, this, at first glance, evident lack of the law technique had it’s certain benefits: among the civil law norms there appeared another so-called “rubber paragraph”, which allowed to invalidate on the ground of error nearly any transaction and nearly any contract that for any of several reasons could seem to contradict the social equity. In the socialist literature there was emphasized that «it must be accepted as basically correct, that in Soviet Civil Code there is no detailed regulation of single error cases», and that, under the circumstances, the law leaves to the court, «which takes into account political situation and social-economical moments, find the proper decision»[1].

No need to mention that transition to the principles of market economy required from Russian civil law securing the higher degree of certainty for the business relations.

The “wind of change” did not pass over the regulation of error in transaction, and the abovementioned technical drawbacks seem to be eliminated in the Civil Code of Russian Federation.

Though the first part of the Art. 178 actually repeats the corresponding one of previous 1964 RSFSR Civil Code, establishing the general principle, that relevant error should be taken into account and be grounds for the invalidation of transaction at the claim of the party in error, this statement now is accompanied by the explanation of what types of error should be regarded as relevant and operative.

Respectively, the error is considered to be operative as far as it refers to:

(1) the nature of transaction, or

(2) the identity of it’s object, or

(3) those qualities of the latter, which considerably reduce the possibility of using it according to it’s function.

Readers, familiar with history of the error doctrine can easily find a parallel to the old Roman “standard” categories of error in negotio, and error in corpore, (which both date back to Ulpianus[2]), as well as to the so-called “error in the essential qualities”, which was developed by the European legal doctrine rather later and involve the whole three Roman types of error, namely: error in materia, error in substantia, and error in qualitate[3].

Actually, the Russian legislator reproduced some categories of Roman law and ius commune. This fairly old solution, though, can not be regarded as totally obsolete. A number of other legal orders also follow this Romanist pattern. For instance, such categories as error in negotio and error in corpore are also employed by the Swiss Civil Code (Art. 24 (1)), the Italian Civil Code (Art. 1429 (1)), and, among the newest codifications, the Quebec Civil Code whose Art. 1400 (1) states that «error vitiates consent of the parties or of one of them where it relates to the nature of the contract, the object of the prestation or anything that was essential in determining that consent».

But, such a wide distribution of the abovementioned approach does not, of course, imply it’s full perfection. As it turned out, it can have it’s weak points. One of the main disadvantages arouses from the fact of employing doctrinal categories for the purpose of making laws. In Russian jurisprudence it became apparent due to persistent discussions concerning the capacity of the respective notions.

Thus, by taking into account “error in the nature” and “error in the object” of transaction, the Russian Civil Code does not provide any definitions or comments for the respective terms.

For instance, the so-called “object of transaction”, in terms of Russian law, can be understood quite differently.

(1) On the one hand, the term object can denote almost everything, that parties kept in mind by concluding the contract and what their intentions were directed at. So it can be both things and actions of the parties. Taking it for granted, one could say that, for instance, the services can be the object of the Contract for the compensated rendering of Services, no less than the thing can be the object of the Contract of sale.

(2) On the other hand, it is possible to cover the meaning of the wording “object of transaction” as property per se. But, as far as among the property objects one can distinguish between the material and the immaterial ones, in this case one would have to choose between: (1) the property in the narrow sense (i.e. things), or (2) the property in the wide sense (which implies not only things, but also property rights, demands, obligations etc.). Taking into account the wide interpretation of the notion property, that is generally accepted in the Russian Civil Code (Art. 128 attributes to the property not only things, i.e. res corporales, but also property rights, i.e. res incorporales), it should be admitted that at any occasion error in the object of transaction relates to immaterial objects as well.

If resort to a comparative analysis, one can also find, that Russian law seem to be the rare legal system where this particular issue turned to the subject of wide speculation.

This problem is of less importance even in the most of legal systems, which, just like the Russian Civil Code, also employ “standard” Roman categories of error. For instance, the Quebec Civil Code (Art. 1400), explicitly and unambiguously speaks about the “object of the prestation”, that leaves no doubt that the matter concerns primarily the property.

Other codes, like, for instance, the Swiss Code (Art. 24 (2)), or the Austrian Code (§§  871, 872), operate directly with the term “thing” (in German respectively: Sache, or Hauptsache).

These codifications strictly follow the Romanist pattern, because, as it evidently follows from the famous fragment of the Digest D. 18. 1. 9. pr., Ulpianus, speaking about corpore obviously meant material objects, and namely, things (two lots in the first example, and two slaves in the second).

Hence, we can come to conclusion that in case the Russian error in the object of transaction corresponds to the Roman error in corpore, it must refer to the property only (though, including immaterial objects). Otherwise, there can be no correspondence between these categories and we could state that the Russian legislator provided error in the object of transaction with it’s own, special meaning.

Thus, due to the vagueness of the notion “object of transaction” in the legal doctrine and in the court practice there appeared uncertainty as to the correct variant of it’s interpretation. Such uncertainty surely could be avoided by the use of a bit more precise definitions.


The same kind of uncertainty can also arise with respect to the error in the nature of transaction, or, in terms of Roman law and ius commune, error in negotio.

There can be no doubt, that the nature of transaction is something that characterizes it’s main point, it’s essence. Hence, as far as any legal transaction is aimed at some definite legal consequences, it’s obvious that the latter are able to characterize the main point of transaction most exhaustively.

But right at this point one have to avoid inaccuracy.

First, the nature of transaction should not be described within the scope of legal rights and obligations arousing from the transaction. As far as legal consequences of transaction may include not only rise of obligation, but also alteration or even cessation of the latter, as well as the transition of some property right, it is not correct to describe the nature of transaction referring to the content of the contractual obligation or even to the substantial conditions of the contract. Both mentioned solutions are applicable only as far as the matter concerns transactions which give rise to some obligations (first of all, obligatory contracts), and, at the same time, pass by the transactions which do not lead to such consequences. Such approach would be a serious restriction of the notion “nature of transaction”.

On the other hand, any exaggerations also should be avoided. It has to be borne in mind, that any transaction in fact is aimed at it’s own, unique consequences, that is why for the purpose of characterizing the nature of transaction only typical characteristics of them should be taken into account. These typical characteristics reveal themselves in the causa of transaction.

Trying to make an intermediate total to the aforesaid, it should be pointed out that the main difficulty arousing in connection with the discussed types of error rests upon the vagueness of the doctrinal concepts. But still, the evident contribution to the stability of contractual relations is already reached by the contemporary Russian Civil Code due to the mere fact of restricting the scope of operative mistakes, and no matter if it results from using the old formal categories of error in negotio and error in corpore.

Speaking about the last type of error that is recognized to be relevant in contemporary Russian law, the error in the substantial qualities, the Russian legislator managed to avoid great troubles, having set in the Civil Code rather clear and effective rules which are more or less adequately applied in court practice. This became possible due to employment of the famous Savigny’s approach, by which he managed to abandon the old “material” chemical criteria, and made any differentiations between the old doctrinal categories error in substantia and error in qualitate useless, for he stated that substantial qualities are those, which, according to notions prevailing in everyday life, cause a thing to belong to a specific class of objects, and the chemical substance is not the only possible choice[4]. In Russian legal doctrine this approach was shared by the famous scholar Gabriel Shershenevich who considered that «error in quality lead to invalidation of transaction in case, when, due to the corresponding qualities, the thing became unsuitable for the assumed purpose of use»[5].

In fact, the purpose of use is surely one of the basic criteria for attributing the subject to one or another category. Supposedly driven by the same idea the contemporary Russian legislator also provided to take into account qualities which considerably reduce possibility of using the object of transaction according to it’s function.

Long before that Savigny’s theory of error in substantia inspired the authors of the German Civil Code (§ 119 II), according to which a contract may be rescinded on the basis of error as to those characteristics of a person or a thing, which are regarded in business as essential. Following it the Art. 62 of the 1905 Imperial Russian Civil Code draft stated that «the quality of an object or a person is considered as essential if it is accepted to be the same in business».

And even though there is no full coincidence between the abovementioned formulae, there is no doubt, that on the whole approach is still the same whether we, following Savigny, speak about characteristics which cause the thing to belong to a certain class of objects, or, like the German Civil Code, point out characteristics which regarded as essential in business, or, like the Russian Civil Code provides for, take into account qualities which considerably reduce the possibility of using the object of transaction according to it’s function.

The Russian Civil Code pays particular attention to the error in motive, which is explicitly indicated as irrelevant. This provision also seems to be aimed at the certainty of law and stability of business relations. Nevertheless the ultimate goal can hardly be reached because of the uncertainty as to the very notion of error in motive. And again it happens because of making use of doctrinal categories without providing them with any legal interpretation. In Russian legal doctrine it is generally accepted that «the motive remains outside the content of the contract», but in fact this formula requires some further explanations, otherwise one can come across insuperable obstacles. For instance, we know that in the course of it’s development, the European error doctrine came to opinion, that every mistake, relating to the quality of an object constituted an error in motive and as such was irrelevant[6]. Hence, by recognizing relevance of error in essential qualities and, at the same time, explicitly proclaiming irrelevance of error in motive, Russian legislator either falls into the insoluble contradiction, or bears in mind some different idea of the latter. Unfortunately, this issue also remains open.

The Russian Civil Code denies relevance of error as to the person of a contracting party. The “moot point” since the old times of glossators. Today such solution can be explained by a number of arguments.

First of all, the person of a contracting party is as a rule of no moment in everyday transactions, but exactly this type of transactions presents the majority in the contemporary commercial affairs.

Furthermore, the solution can be explained by realities of the modern world, technical progress, accessibility and availability of information. In such conditions only careless and even negligent person can make such mistakes. At least, from such presumption seem to proceed the Russian legislator.

For the purpose of assessing relevance of mistake the contemporary Russian Civil Code, in contrast to some foreign legislations, does not require to consider whether mistake was easy to recognize or whether it was discovered before the beginning of the performance (re integra). It has to be emphasized, that similar criterion was employed by some representatives of the natural law for the purpose of restricting relevance of error in motive. As soon as the latter is evidently pronounced as irrelevant, there is no need to resort to such decision.

There is also no need to explore, whether the mistake was excusable or not, or whether it was causal for committing the declaration. According to the Art. 178, positive or negative answer of whether the contract would have been concluded also without mistake, does not make any difference as soon as the error match the requirements set by the Code and refer to one of the “operative” categories.

There only one question of the criterion remains open, which is supposed to be applied by investigating the inner will of the party in error. Should it be an “objective criterion”, aimed at some average person, or one have to take into account every single peculiarity of the contracting party, such as the age-specific, mental, medical, intellectual and other characteristics? The Code gives neither an exact answer nor drops a hint, but in the court practice it had been repeatedly emphasized, that for the purpose of establishing the inner will of the party in error, the court has to take into account every circumstance of the case.

Summarizing the issue under discussion one can come to the conclusion, that the Russian Civil Code, currently in force, as compared to the previous Russian legislation, made the considerable step forward, having become, in fact, the first legal act in the whole history of Russian civil law, which provides some definite guidelines and criteria for assessing the relevance of mistake. And accepted in the Russian Civil Code variant of regulating consequences of error, by which the transaction is not invalid ipso iure, but may only be rescinded by means of declaration of the other party, also contributes to the stability and certainty of business relations.




[1] Novitskii I. B. Сделки. Исковая давность [Transactions. Limitations] Moscow, 1954. P. 103.


[2] Ulp., 28 ad Sab., D. 18.1.9 pr.


[3] See e.g.: Schermaier M.J. Die Bestimmung des wesentlichen Irrtums von der Glossatoren bis zum BGB. – Wien, Köln, Weimar: Böhlau, 2000. S. 27.


[4] See e.g.: Savigny F. C. v. System des heutigen Römischen Rechts. III. Band. Berlin: Veit & Comp., 1840. P. 283.


[5] Shershenevich G. F. Курс гражданского права [Kurs Grazhdanskogo Prava] Tula, 2001. P. 158 -159.


[6] See e.g.: Savigny  F. C. v. Op. cit. P. 291, 304, 305. Cf.: Flume W. Eigenschaftsirrtum und Kauf. Münster: Regensberg, 1948. P. 31.