ABSTRACT
Error, duress and fraud are, as we have seen, the three most important vices du consentement in the civil law systems. They all affect the formation of the agreement and they all undermine the formation at the subjective level. English law, thinking in terms of promises rather than agreement, has to approach the problem in a different way. Instead of looking at the subjective minds of the parties the emphasis is on the facts and on the law of remedies and thus the problem of error is seen as a matter of circumstance. One such circumstance is pre-contractual statements. Contract lawyers in a commercial and a consumer environment are often faced with the problem of having to analyse contractual liability within a mass of negotiating statements motivated by the legitimate self-interest of the parties. Many of these statements can be ignored by the law as being non-specific advertising ‘puffs’; other, more specific statements, may not end up as part of any formal contract. Nevertheless, statements made before contract can affect the beliefs and assumptions, if not the will (volonté), of one or both parties.
