Case

Far Eastern Delights, an ancient oriental art gallery, sold a Chinese statuette to Emile, an amateur art lover. The piece was described by Far Eastern Delights' catalogue as ‘Tang dynasty, practically intact with very few restorations’. Emile has now discovered that the head and hands are in fact very recent, and that little remains of the original work. What remedy, if any, is available?

Discussions

Austria

(i) This case again covers a mistake as to the content of the contract (mistake as to the characteristics and qualities of the subject matter).

(a) On one view, there seems to be a common mistake to both parties, if it is considered that Far Eastern Delights did not know that the Chinese statuette sold had not been a pure and practically intact original statuette of the Tang Dynasty. This mistake common to both parties, however, is less problematic than in Case 1. As already described, the prevailing view and the unbroken line of authorities under which a common mistake is to be added to the cases named and recognised in § 871 ABGB and, therefore, entitles both parties to a right to annul or to adapt is criticised on the grounds that a mistake common to both parties does not fit with the system of § 871 ABGB which emphasises the importance of protecting the non-mistaken party since in case of a common mistake both parties are equally worthy to be protected.