The property error is an exceptionally considerable error in the formation of the will ( motive error ). It is expressly regulated in the BGB ( (2) BGB) and is present if the declaring party is mistaken about a property or person that is essential to traffic and is the subject of the legal transaction . This error entitles the declarant, the transaction immediately to challenge what to BGB to the initial nullity leads the contested transaction.
The prevailing opinion understands a property essential to transport to be a permanently attached value-creating factor to a thing, but not the value or the price per se, as these can fluctuate due to changes in the market and therefore do not adhere to the thing permanently.
It is disputed whether the existence of a thing is also a property of it. On the one hand, it is argued that existence is the primal property of a thing and that there is also no objective reason to treat a person who is wrong about the existence of an image differently than someone who is about a (different) property like that Painter, wrong. On the other hand, it is argued that, conceptually, existence cannot be a property of a thing, since it is a condition for it itself.
The possibility of contestation due to a mistake in properties is suppressed in sales law before as well as after the transfer of risk by the rules on liability for material defects. The seller cannot contest the contract in accordance with (2) of the German Civil Code (BGB), but must rather use Sections 434ff. note. This is justified by the fact that otherwise the rules on contestation would undermine the warranty right .
- cf. Jauernig only, Commentary on the Civil Code, Munich 2009 (14th edition), Section 119 No. 16.
- Which errors justify a challenge? , Internet Advisor Law, accessed on July 28, 2008