Escuela de Derecho

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https://hdl.handle.net/10784/8

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Examinando Escuela de Derecho por Materia "Absolute invalidity"

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    El régimen del error como vicio de la voluntad en la legislación civil colombiana : algunas problemáticas y propuestas de solución
    (Universidad EAFIT, 2021) Correa Mejía, María Camila; Gaviria Gómez, Juan Carlos
    This paper presents four of the main problems of the mistake regime in the Colombian legal system: the mistake in the determining motive (i); the mistake of law (ii); the inexcusable mistake (attributable) to the claimant (iii); the substantive mistake (iv). For each of these problems a dogmatic solution is proposed and the corresponding reform that could be made to the Civil Code regime (arts. 1509 et seq.). Regarding the determining motive, it is not expressly envisaged and there is a lack of clarity in its assumptions. It is proposed to specify its regime and assumptions, and to establish it as the genre that encompasses the other types of mistakes. In respect of the mistake of law, it is found that the current regulation (which considers it irrelevant) is not consistent with the legal reality of the country or with subsequent developments (nationally and internationally) on the subject. It is proposed to unify its regime with that of mistake of fact, with certain exceptions (e.g., excusability). With regard to the excusability of mistake, it is not expressly contemplated in the civil legislation despite its importance (but it is intuited from dispersed norms or legal principles of private law, without greater clarity). It is proposed to express the requirement for the generality of mistakes, and to take an additional step in the sense of contemplating the cases in which the "risk of mistake" is assumed. Finally, in relation to the substantive mistake, Art. 1510 of the Civil Code is criticized by several doctrinaires because it would turn its back on the general theory of the legal transaction, according to which there would be lack of consent and, therefore, non-existence. A regulation is proposed which, in order to solve this problem, would resort to the theory of the formation of consent, which would make it possible to differentiate the cases of substantive mistake in which there is a counter-offer (and therefore non-existence) from the cases in which there was a contract vitiated by relative nullity due to a mistake on the part of the addressee in the interpretation of the offer.