טעות בכדאיות העסקה: שווי האובייקט, התרחשויות עתידיות, נטילת סיכון ורשלנות הטועה

Under sections 14 and 15 of the Israeli Contracts (General Part) Law, 1973, a party who entered a contract as a result of a serious mistake, or a mistake induced by the other party (i.e., deceit), may rescind the contract. However, section 14(d) excludes “a mistake as to the worthwhileness of the transaction” from the ambit of mistake and deceit. Four different meanings have been offered for this expression by Israeli courts and commentators: (1) mistake as to the value of the transaction’s object, (2) misprediction of future developments, (3) mistake regarding which a party has assumed the risk, and recently (4) mistake attributable to the mistaken party’s negligence. The Article maintains that these are four distinct issues that merit separate consideration, hence taking a stand regarding one of them does not necessarily bear on the others. Specifically, the Article criticizes the position that the mistaken party’s negligence should negate her reliance on the mistake (or deceit). It argues that this position, emerging from the majority opinion in Karmel v. Talmon, is incompatible with the existing law of mistake and related issues. This position signifies a troubling retreat from notions of mutual consideration, fairness, and reasonableness, which have taken hold in Israeli law in the past decades, towards extreme individualism and “caveat emptor.”