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Poole's Textbook on Contract Law

Poole's Textbook on Contract Law (14th edn)

Robert Merkin QC and Séverine Saintier
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date: 25 September 2021

p. 833. Agreement problemslocked

p. 833. Agreement problemslocked

  • Robert MerkinRobert MerkinProfessor of Commercial Law Exeter Law School, University of Exeter
  •  and Séverine SaintierSéverine SaintierAssociate Professor in Commercial Law Exeter Law School, University of Exeter


Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree. This chapter also considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the availability of the remedy of rectification when the contract that does not accurately reflect what the parties agreed. The chapter also considers the defence of non est factum (this is not my deed).

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