Dwaling

Dwaling is a legal concept in Dutch contract law that refers to a defect in the formation of a contract caused by a mistaken belief or by false or incomplete information presented to one of the contracting parties. It denotes an error in consent that can affect the validity of an agreement, especially when the error concerns essential facts about the subject matter or terms of the contract.

Dwaling can arise from the other party’s misrepresentation, concealment of information, or from a party’s mistaken understanding of the facts. For dwaling to be actionable, the error must concern something material to the decision to enter into the contract, and the party who entered the contract must have relied on that incorrect information when agreeing. The error typically must be significant and not merely a minor or personal misjudgment, and it is usually required that the error was reasonably attributable to the information provided by the other party or to the circumstances.

The remedies for dwaling depend on the case and jurisdiction within Dutch law. In many instances, a contract affected by dwaling can be rescinded or annulled, and in some situations damages may be recoverable if fault lies with the other party. The appropriate remedy is determined by the court and depends on the gravity of the error and the surrounding circumstances.

Dwaling is distinct from bedrog (fraud), where misrepresentation is intentional, and from mere risk or unforeseen change in circumstances. It also differs from mere nondisclosure, which may fall under separate legal theories of fault or vulnerability, depending on the context.