착오개념과 취소요건 – 비교법적 고찰로부터의 시사(示唆) –

The law of mistake is one of the most puzzling field in the law of contract. It is partly because the law of mistake covers various issues including mistake in transcription or transmission, mistake in motives, and innocently or negligently induced mistake. In this paper, the author peformed comparative study on the law of mistake in Germany, Austria, Switzerland, France, the United States, and England. The fundamental results show that each category of mistake – mistake in transcription or transmission, mistake in motives, and innocently or negligently induced mistake – constitutes independent legal institution in many countries, like Irrtum, Geschäftsgrundlage, culpa in contrahendo, erreur-subtance, erreur-obstacle, common or mutual mistake, unilateral mistake, and misrepresentation. They also show the requirements the mistake in motives vitiates the contract are roughly the same in different countries while those the mistake in transcription or transmission vitiates the contract are different from one another. Under the case law in Korea, all these issues are subject to the law of mistake. The case law, however, has developed differentiated criteria to decide whether to vitiate the contract in different categories of mistake, which is basically agreeable lege lata. As for mistake in motives, it is also important to perceive that ignorance as well as change of circumstances are in the same vein as mistake. All these are about the allocation of contractual risks. It would be better to implement independent legal institutions for different categories of mistake lege ferenda.