Remedies for Defects in the Formation of a Contract

Abstract The chapter compares the remedies for defects in the formation of a contract in English law and French law, with a view to discovering what English law can learn from such a comparison. The term ‘remedies’ is used in a broad sense, covering both active remedies (effected by court order or by act of party) and passive remedies (consequences provided by the law without the need for intervention of either the court or a party), and the discussion is structured around the distinction in English law between the categories of void contracts, voidable contracts, and unenforceable contracts, and their comparison with the French remedies of absolute and relative nullity of the contract. The chapter identifies unresolved difficulties in relation to the category of ‘void’ contracts, particularly as the remedy for the parties’ common mistake relating to the subject matter, and in the relationship between a contract void for such a mistake and a contract voidable for misrepresentation. By comparison with the French remedy of relative nullity, the question is whether mistake should render the contract only ‘relatively’ void—or, more simply, voidable.