Caribbean legal systems converge in the fact that, under some circumstances, the contract may be avoided when any one of the parties has expressed its consent defectively. According to the proposed classification, mistake, fraud, threat and undue influence are defects of consent. The defect categories proposed are based on the same criteria of neutrality as all the provisions that govern these Principles. These defect categories mentioned above are aimed at creating a space that is large enough to embrace current doctrines and institutions in Caribbean legal systems which pursue similar purposes.

The classification adopted brings together the significant contractual situations related to defects of consent in all Caribbean legal systems. With this grouping and this legal comparison, the Principles claim not only to contribute to knowledge and clarification about the regulations on defects of consent in Caribbean legal systems as well as to verify and propose the possible points of convergence as against the harmonising view in a multicultural framework.

The OHADAC Principles follow the classification of defects of consent which include those found in the traditional codes, as well as undue influence characteristic in English equity law to the defects usually envisaged in the civil codes of the 19th century. The concept of undue influence derived from Anglo-American law has generally been adopted in different ways in European and international texts on contract law harmonisation. Therefore, this classification is related to that followed in other legal texts, which also have to harmonise different institutions in order to propose a useful legal framework for both common law and civil law cultures, such as the UP, the PECL, the DCFR or the CESL.

While UP refer to error, fraud, threat and gross disparity as causes of contract avoidance (Articles 3.2.1 a 3.2.7), under a general chapter on validity, PECL deals with mistake (Article 4:103), fraud (Article 4:107), threats (Article 4:108), excessive benefit or unfair advantage (Article 4:109) and unfair terms that have not been individually negotiated (Article 4:110). DCFR lists as defects of consent: mistake (Article II-7:201), fraud (II-7:205, coercion or threats (Article II-7:206) and unfair exploitation (Article II-7:207); CESL also alludes to mistake (Article 48), fraud (Article 49), threats (Article 50) and unfair exploitation (Article 51).

The OHADAC Principles, all the while following the trend of the above-mentioned texts and referring to their treatment in the various Caribbean legal systems, have excluded defects such as personal duress or violence (vis absoluta) which, unlike others defects of consent, imply a complete absence of consent. The legal treatment of these situations will be found in Article 3.1.1.

The categories proposed do not present any particular difficulties in civil law systems. These usually consider mistake, duress, threat and fraud as defects of consent (Article 1.556 of the Honduran Civil Code; Article 1.116 of the Panamanian Civil Code; Article 1.217 of the Puerto Rican Civil Code). There is a wide array of expressions [Articles 2.455, 2.457 and 2.460 of the Nicaraguan Civil Code uses the term “fuerza” (force) as synonymous of “violence”, and “miedo grave” (serious fear) in cases of threat; Articles 69 and 71 of the Cuban Civil Code uses “fraude” (fraud) in cases where other legal systems commonly uses “dolo”; Articles 1.015 to 1.020 of the Costa Rican Civil Code list as defects of consent: “error” (mistake), “fuerza o miedo grave” (duress or serious fear), “intimidación” (threat) and “dolo” (fraud)]. Lastly, most legal systems frequently put together duress and threat under a generic concept of violence (Articles 1.109 and 1.112 of the French and Dominican Civil Code; Article 904 of the Haitian Civil Code; Articles 1.812 and 1.819 Mexican Civil Code; Articles 1.146 and 1.151 Venezuelan Civil Code) or force (Article 1.508 and Article 1.513 of the Colombian Civil Code). Given the general trend, it appears trivial to mention that the Cuban Civil Code has, formally at least, no rule on duress or threat, and that the Guatemalan Civil Code also includes simulation as a defect of consent (Article 1257), and Saint Lucian Civil Code (Article 925 Civil Code) includes injury together with error, fraud, violence and fear.

The classification adopted also draws on the Dutch system. According to Article 3:44 of the Dutch and Suriname Civil Code, a contract may be avoided once there is duress, fraud and undue influence. It may also be avoided for error under Article 6:228.

The proposed classification takes into consideration the existing divergence between common law and civil law in relation with the understanding of “error” and mistake, which are not perfectly equivalent. “Mistake” embraces different cases which fit in different defects in the light of the OHADAC Principles and of the analysis of legal effects of each kind of case.

English authors distinguish between common mistake, mutual mistake and unilateral mistake. In common mistake cases, the agreement of the parties is grounded in an error, so that generally these cases fit in the rule of Article 3.4.3. However, in view of their consequences (absolute nullity or non-existence of the contract), mistake related to a res extincta, which affects the object of the contract when it has perished without the parties knowledge before the contract's conclusion [Couturier v Hastie (1856), 5 HL Cas. 673; Strickland v Turner (1852), 155 ER 919], and mistake of the buyer who does not know that it already owns the object sold, or “res sua” mistake [Abraham v Oluwa (1944), 17 NLR 123], are considered in the OHADAC Principles as cases of initial impossibility (Article 3.1.3). The same treatment applies to the mutual mistake, which is characterised by a misunderstanding between the parties who negotiate, each with a different thing or deed in mind. Given that the consequence of these kinds of mistake in common law countries is the absolute nullity or non-existence of the contract [Raffles v Wichelhaus (1864), 2 H. & C. 906; Scriven Brothers & Co v Hindley & Co (1913), 3 KB 563], the OHADAC Principles characterises it as cases of non-existence of consent (Article 3.1.1). Finally, a unilateral mistake occurs where only one party makes a mistake, while the other does not but it is aware of the facts or should have been aware of it. In the light of its legal treatment in common law, this sort of mistake fits into the legal regime of mistake in Article 3.4.3.

The proposed characterisation facilitates the legal treatment of the common law institution named “misrepresentation” as cases of error or fraud as they are understood in civil law systems, depending on its characterisation as innocent or fraudulent misrepresentation. Both situations entitle the aggrieved party to avoid the contract (Article 1 Misrepresentation Act of 1967; Article 2 Bermuda Law Reform Act of 1977; Section 164 Restatement (Second) of Contracts).

In cases of documents erroneously signed or signed with a content quite different to that intended, common law also allows, although exceptionally, that contract was considered as void if they have been signed by blind or illiterate persons [decision of the High Court of Trinidad and Tobago in Seepersad v Mackhan (1982), No 533 of 1977 (Carilaw TT 1982 TT 27); decision of the Supreme Court of Bahamas in Gordon v Bowe (1988), Carilaw BS 1988 SC 75]. Although error in declaration is subject, under Article 3.4.4 of these Principles, to the same regime as mistake as a defect of consent, these cases are not included in the scope of application of this Section because of the special seriousness of circumstances causing the error and they must be considered as cases of absence of consent.

Violence and threat in civil law systems can be characterised as cases of duress in common law. Like in Caribbean legal systems inspired by French and Spanish law, duress exists where a party is victim of threats or intimidation (vis compulsiva).

In the Caribbean civil law systems, there is no specific defect similar to undue influence over one party in order to induce it to conclude a contract. If this happens, contract may be voided providing that the consent of the aggrieved party is not freely expressed because the other party has taken advantage of the situation of trust, necessity, dependence or psychological weakness of the party whose will has been wrongfully determined. Courts in equity have developed the doctrine of undue influence in order to give effect to defects in consent which do not fit in the category of “duress”. However, some cases of undue influence may be considered as threat, as mentioned below in the commentaries on Articles about threat and undue influence.