Towards a Unitary and Consistent System of Informational Defects in Consent and Pre-Contractual Liability Under Italian Law

Over the last few decades, various attempts have been made to hermeneutically update the regulation of defects in consent (mistake, fraud, duress, incapacity), and above all of those defects in consent which we might call 'informational' (mistake and fraud). After having broadened the scope of mistake and fraud, Italian scholarship, followed by case law, has proposed the application of pre-contractual liability in cases in which a person causes the conclusion of a valid, but disadvantageous contract, failing to correct an error or to provide relevant information, or providing wrong information. However, the modern way of understanding informational defects of consent - not as contractual pathologies deriving from the lack of a constituent element of the contract such as the will, but as remedies in favour of one party - suggests a hermeneutical revision (or, at least, legislative reform), leading to the construction of a unitary and consistent system of pre-contractual liability and defects of consent based on a pre-contractual distribution of risks in accordance with good faith. Analytically, this requires that the scope of application of defects in consent provided for by the Civil Code (typical mistake and fraud) be restricted rather than broadened, creating space between them for the introduction of a series of 'atypical' informational defects in consent: recognised atypical mistake, induced atypical mistake, and mutual mistake.