意思表示錯誤之起源與發展

The Origin and Evolution of the Institution of Expression of Intent under a Mistake

本篇文章探討意思表示錯誤之起源與發展，以法史學與法律比較學為基礎，分析檢討我國民法總則意思表示錯誤之幾個問題，例如：表意人「故意」使意思與表示不一致，為單方虛偽意思表示；表意人「過失」使意思與表示不一致，為意思表示錯誤。民法第88條第1項但書所規定之過失，通說認為是指抽象輕過失，表意人祇要有抽象輕過失，即不得撤銷錯誤之意思表示，其法律效果與單方虛偽意思表示相同，相當於將「抽象輕過失」等同於「故意」處理。最高法院採具體輕過失說，將「具體輕過失」等同於「故意」處理。意思表示錯誤與單方虛偽意思表示，是否應該相同處理？針對這個問題，2017年6月修正之日本新民法第95條與德國民法第119條第1項有不同之規定，對我國民法第88條第1項但書之規定，在法律解釋層面或立法政策層面，應該會有啟發之作用。此外，依民法第184條第1項與第220條第1項之規定，就損害賠償，係採故意或過失之責任原則。然而，表意人撤銷錯誤之意思表示後，學界通說認為，表意人縱使無過失，仍應對善意無過失之相對人或第三人負損害賠償責任，其理論基礎何在，似有進一步研究之必要。

This article explores the origin and evolution of the institution of expression of intent under a mistake. Through the lens of legal historiography and comparative jurisprudence, it analyses and critically reviews aspects of expression of intent under a mistake as set forth in the General Provisions of the Civil Code. Unilateral false expression of intent occurs when the disagreement between expression and intent is willfully caused by the expresser. Expression of intent under a mistake occurs when the disagreement is resulted from negligence of the expresser. According to the mainstream scholarly opinion, ''negligence'' as stipulated under the proviso of article 88 of the Civil Code should be interpreted as ''abstract minor neglience''. Therefore, the expresser may not revoke what he has expressed upon the finding of neglience as such and the expression of intent in question stands as in the case of unilateral false expression of intent. That is to say, here, ''abstract minor neglience'' and ''willfulness'' are treated as the same. In its 1973 Taiwan Appeal No. 140 decision, the Supreme Court ruled that, in this context, neglience shall be construed as ''concrete minor neglience. Thus, ''concrete minor neglience'' is treated the same as ''willfulness''. Should expression of intent under a mistake and unilateral false expression of intent be viewed as the same in the eyes of the law? Article 95 of the Japanese Civil Code as amended in June, 2017 and paragraph 1 of article 119 of the German Civil Code provide different rules, which should be able to enlighten us on the interpretation and legislative policy of the proviso of article 88 of the Civil Code.In addition, paragraph 1 of article 184 of the Civil Code provides that aperson who, intentionally or negligently, unlawfully injures the right of another person is liable to make compensation to the other party for the damage arising from this and paragraph 1 of article 220 provides that the obligor is responsible for intention and negligence. In other words, the award of damages is based on intent or negligence. According to the mainstream scholarly opinion, however, the expresser becomes liable for the loss of the bona fide other or third party by revoking his mistakenly expressed intent, he himself is of no fault is not a defense. The reason, and theoretical foundation, for imposing this liability without fault seem to require further study.