Error

Error in Law – Concept, Significance, and Legal Implications

The term ‘error’ holds a versatile and central meaning in German law. Legally relevant errors can trigger a wide variety of legal consequences. They occur in civil law as well as public law, criminal law, and related legal areas. The precise definition, meaning, and classification of an error often depend on the context and are shaped by the particular subject matter. The following explains in detail the most important manifestations, differences, and legal consequences of errors.

Conceptual Classification of Errors in Law

Definition and Distinction

In the legal context, an error is understood as a deviation between the intended and actual state, provided this deviation is legally relevant. This primarily concerns the discrepancy between actions, declarations, formation of intent, or circumstances, and a required legal standard, an agreed quality, or a statutory provision.

The error may be of a material or formal nature and thus relates to facts, declarations of intent, content of legal acts, procedures, judgments, or actual conditions relating to persons or objects.

Types of Errors in the Legal Sense

• Factual Error (mistake regarding facts)
• Legal Error (error of law, misinterpretation)
• Formal Error (failure to comply with statutory or contractual formal requirements)
• Defect as an Error (e.g., in sales law)
• Procedural Error (e.g., in administrative, civil, or criminal proceedings)

The specific characteristics of the error concept depend on the applicable area of law.

Errors in Civil Law

Defective Declaration of Intent

A central application is the defective declaration of intent (§§ 119 ff. BGB). Errors in the formation or expression of intent can make a legal transaction voidable. The main distinctions are:

• Mistake in Declaration: The person making the declaration uses an expression that deviates from what was actually intended.
• Mistake in Content: The person making the declaration misunderstands the meaning of their statement.
• Mistake as to Qualities: Concerns essential qualities of a person or object.
• Transmission Error: Error caused by a messenger or intermediary.

The consequence of a defective declaration of intent is often voidability, with the possibility to retrospectively (ex tunc) nullify the legal transaction.

Defects in Contracts

Contractual errors can have various causes, such as:

• Grounds for Avoidance,
• Breach of Form Requirements (e.g., lack of notarial certification),
• Defective Acceptance or Offer,
• Violation of Statutory Prohibitions or Immorality.

Here too, errors may lead to the nullity or adjustment of a contract.

Error Concept in Sales and Contract for Work Law

In transactional obligations, the concept of error is particularly relevant in the case of material defects (§ 434 BGB). An error exists if the actual condition of an item deviates from the contractually agreed or standard condition.

The error concept also holds further relevance in services contracts (§ 633 BGB).

Distinction Between ‘Error’ and ‘Defect’

Legally, a distinction must be made between an error as a value-neutral deviation and a defect, which denotes a deviation relevant to the particular transaction. Thus, a defect presupposes an error, though not every error leads to a legally significant defect.

Errors in Representation and Power of Attorney

Errors can also occur in granting or exercising powers of attorney, for example by exceeding authority or through incorrect documentation, which may lead to the invalidity of legal transactions.

Errors in Public Law

Defective Administrative Acts

An administrative act is defective if the requirements are not fulfilled materially or formally (see §§ 119 ff. VwGO). Types of errors in administrative acts include:

• Formal Errors (e.g., lack of reasoning, violation of the right to be heard)
• Material Errors (e.g., violation of laws, incorrect factual basis)

The assessment of legal consequences is governed by the basic principles of the Administrative Procedure Act (VwVfG); in particular, it must be determined which errors result in the nullity, revocability, or irrelevance of the administrative act.

Procedural Errors

In administrative proceedings, errors may arise in participants’ rights, hearings, file inspection, service of documents, or time limit observance, which can constitute procedural errors that may later affect the validity and finality of a decision.

Consequences of Errors in Public Law

Depending on the severity and type of error, the law distinguishes between:

• Significant Errors (affect the validity of the administrative act)
• Insignificant Errors (legally inconsequential, e.g., after rectification)
• Grounds for Nullity (most serious errors, lead to voidness of the administrative act)

Errors in Criminal Law

Mistake of Fact and Mistake of Law

In criminal law, a distinction is made between mistake of fact (§ 16 StGB) and mistake of law (§ 17 StGB). A mistake of fact exists when the perpetrator is unaware of a circumstance that is part of the statutory definition of the offense. Consequence: intent is excluded.

A mistake of law occurs when the perpetrator, at the time of the act, does not know that it is unlawful. If this mistake is unavoidable, culpability is excluded.

Procedural and Evidence Errors

Errors may also occur in the course of evidence-taking or trial procedure. Defective evidence, missed deadlines, violations of the right to be heard, or other deficiencies can render judgments erroneous and are subject to challenge by legal remedies (e.g., appeal).

Errors in Civil Procedure and Procedural Law

Sources of Error in Civil Proceedings

In civil procedure law, errors may occur, among others, in:

• Service to Parties
• Filing of Action and Statement of Claim
• Taking of Evidence
• Grounds for Judgment.

Depending on the error, this leads to

• Rectifiability,
• Nullity,
• Voidability or
• Reopening of Proceedings.

The legal consequences are subject to strict formal rules in civil procedure.

Reference to Error Doctrine – Legal Consequences and Remedies

Distinction According to Error Intensity

• Rectifiable Errors: can be corrected afterwards or remedied by making up for them.
• Irremediable Errors: necessarily result in invalidity or voidness of acts or legal transactions.
• Minor Errors: generally legally irrelevant unless protected rights are affected.

Legal Remedies in Case of Errors

Depending on the error, different legal remedies may be available:

• Challenge (e.g., challenge of declarations of intent)
• Appeal/Possibility of Revision (in procedural law)
• Action for Nullity (in case of fundamentally flawed legal acts)

Errors can sometimes only be invoked afterwards, for example by a restitution action or complaint procedure.

Summary and Relevance of the Error Concept in Law

Errors in law are of great importance for the validity, effectiveness and legal consequences of transactions, acts, and proceedings. Depending on the type of error and the legal subject matter concerned, different definitions, requirements, and consequences must be distinguished. The correction and sanctioning of errors take place through specific legal instruments such as challenge, nullity, rectification, and revision in the respective procedures. Assessing and dealing with errors is a key element for legal certainty and the proper functioning of the legal system.

Frequently Asked Questions

What legal consequences can a significant or insignificant error in a declaration of intent have?

A significant error in a declaration of intent – for example, a mistake in declaration, content, or transmission pursuant to § 119 BGB – generally gives the declarant a right to rescind. If the right of rescission is exercised within the statutory period (§ 121 ff. BGB), the legal transaction in accordance with § 142 para. 1 BGB is retroactively (ex tunc) treated as void from the outset. The contract then has no legal effect, and a claim for restitution of any performance rendered may arise pursuant to § 812 BGB (unjust enrichment). An insignificant error, on the other hand, such as a mistake in motive (error about the reason for making the declaration of intent), does not have legal consequences: The transaction generally remains effective, rescission is not possible, so the legal transaction continues to exist and the parties’ agreed rights and obligations persist.

To what extent does the law protect the contract partner from the consequences of a successful rescission due to an error?

If a contract is successfully rescinded due to a significant error, this creates considerable legal uncertainty for the other party, as the transaction is retrospectively voided. The legislator protects the other party through various mechanisms: Firstly, effective rescission requires that the ground for rescission is asserted without undue delay after discovering the error (§ 121 BGB). Secondly, § 122 BGB provides that if a declaration of intent is rendered ineffective by rescission with legal consequences, the party rescinding is obliged to compensate the other for so-called reliance damages—that is, to restore them to the position they would have been in had they not relied on the validity of the declaration. However, this claim is generally limited to a maximum amount, namely the negative interest and at most the value of the interest in the validity of the declaration.

How do the time limits for rescission differ depending on the type of error?

The statutory periods for rescission depend largely on the type of error. For significant errors under § 119 BGB (errors in declaration and content) and § 120 BGB (error in transmission), rescission must be declared without undue delay after learning of the ground for rescission, typically within days or weeks depending on the circumstances of the individual case. An exception applies in cases of fraudulent misrepresentation or coercion (§ 123 BGB): Here, the rescission period is one year from the time the entitled party discovers the fraud or duress or it ceases (§ 124 BGB). Once the period lapses, the right to rescind generally ceases to exist, and the legal transaction remains valid (despite the recognized error).

What errors can render a legal transaction void even without rescission?

Not all errors must necessarily be asserted through rescission to make a legal transaction void. Some errors render a transaction void by law. This applies, for example, in cases of fraudulent misrepresentation or duress, when other statutory requirements are not met. Moreover, violations of statutory prohibitions (§ 134 BGB) or immorality (§ 138 BGB) lead to nullity regardless of rescission. Formal defects—i.e., failure to observe statutory form requirements, for example in real estate purchase agreements (§ 311b BGB)—also result in invalidity of the transaction if the formal requirements of § 125 BGB are not met.

What role does the concept of “good faith” play in errors in legal transactions?

The principle of “good faith” (bona fide) means that a party may rely on the other party’s declaration of intent being meant as it was expressed. This protection is, among other things, enshrined in § 173 BGB (representation without authority) and also in § 122 BGB. However, in the context of errors, the law does not offer unrestricted protection to every contractual partner acting in good faith. In particular, there is no protection if the contractual partner knew or by gross negligence failed to know of the error (e.g., a mistake or the intent to rescind) (§ 122 para. 2 BGB). In such cases, no claim for reliance damages arises.

Can errors in interpreting a declaration of intent lead to different outcomes?

The interpretation of declarations of intent follows the so-called objective recipient’s perspective (§§ 133, 157 BGB). If an error exists, for example, because one party interprets the contract text differently (error of interpretation), it must first be determined what meaning a reasonable person would have attached to it under the given circumstances. If the error causes the objectively declared intention and the actual subjective intention to diverge, this may result in a content or declaration error, which establishes a right of rescission. In other cases, the declaration of intent remains effective as objectively determined. This often leads to differences, such as in cases of hidden or open deficiencies in reaching agreement, so that the precise legal outcome depends largely on correct interpretation.

What is the difference between an error regarding legal consequences and an error regarding motive, and what legal effects do they have?

A mistake as to legal consequences (Rechtsfolgeirrtum) occurs when the declarant is mistaken about the legal consequences of their action, although they make the declaration itself as intended (e.g., believing that a contract is not yet formed by signing, when in fact it already is). Such a mistake is generally irrelevant; there is usually no right of rescission, as the law only recognizes mistakes concerning the content or the declaration itself as relevant. The same applies to a motive error (Motivirrtum) – i.e., a misconception about a circumstance outside of the declaration (such as the value of a purchased object). This type of error also does not entitle one to rescind, unless the motive was expressly made the basis of the contract by way of exception, or the error occurred as a result of fraudulent misrepresentation. In most cases, contracts remain valid despite such errors.