The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary, and other features. This chapter discusses the three broad classifications of mistake: common, mutual and unilateral. In common mistake (sometimes confusingly referred to as mutual mistake) both parties share the same mistake about a fundamental fact of the contract. With mutual mistake the parties are at cross-purposes but neither realizes it. In unilateral mistake only one of the parties is mistaken and the other party either knows of the mistake or possibly is deemed to know.
Chapter
8. Mistake
Chapter
2. Agreement problems
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on issues which may prevent the parties from reaching agreement. Agreement problems generally affect the agreement by rendering it void. It is necessary, however, to distinguish a void contract from one which is merely voidable. If an apparent agreement is too uncertain in its terms (e.g. because it is vague or essential terms are missing), the courts will not enforce it because they will not construct a binding contract for the parties. An apparent agreement may be void where the parties entered into the agreement under a ‘fundamental’ mistake which the law recognizes as preventing the parties from ever reaching agreement.
Chapter
8. Mistake
Robert Merkin KC, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter focuses on the legal treatment of ‘mistake’. It considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the remedy of rectification when the contract does not accurately reflect what the parties agreed. It also considers the defence of non est factum. It then considers mistakes that are presumed to nullify consent if both parties entered into the contract under the same fundamental mistake. The doctrine of common mistake in English law is designed to protect the interests of third parties and to ensure certainty in transactions. A fundamental common mistake arises in cases where there is true impossibility or failure of consideration; the contract is automatically void and any money or property involved has to be returned. Distinctions can arise depending upon whether the impossibility is initial (common mistake) or subsequent (frustration doctrine). Categories of common mistake at common law include mistake as to subject matter (res extincta) and mistake as to ownership (res sua). A mistake as to quality will rarely be sufficiently fundamental to render the contract void. This chapter also discusses Lord Denning’s attempts to introduce an equitable jurisdiction to set aside on terms in cases of mistakes as to quality. These were rejected in Great Peace Shipping Ltd v Tsavliris (International) Ltd meaning that there is no remedial flexibility in such instances.
Chapter
8. Mistake
Robert Merkin KC, Séverine Saintier, and Jill Poole
Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter considers the area of ‘mistake’. The law distinguishes between several types of mistake. Some mistakes (‘agreement mistakes’) prevent formation of an agreement. These mistakes are common mistakes (where the parties are at cross-purposes) and unilateral mistakes (where one party is mistaken and the other knows or ought to know this, e.g. unilateral mistake as to identity). The chapter also looks at document mistakes and specifically rectification of a written document to reflect accurately what the parties in fact agreed, and the plea of non est factum (‘this is not my deed’). Finally, a contract having no contractual allocation of risk and made under the same mistaken assumption may be void for ‘common mistake’ if the mistake is so fundamental that it ‘nullifies’ consent. This is known as ‘initial impossibility’ because the impossibility already exists when the parties agree to the contract. This chapter deals with common mistake and initial impossibility, contractual risk allocation, and the theoretical basis for the doctrine of common mistake. It discusses categories of fundamental common mistake, including res extincta, and assesses the legal effects of mistakes as to quality made by both parties. The chapter concludes by considering the relationship between common mistake and frustration.
Chapter
2. Agreement problems
James Devenney and Adam Shaw-Mellors
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on issues which may prevent the parties from reaching agreement. Agreement problems generally affect the agreement by rendering it void. It is necessary, however, to distinguish a void contract from one which is merely voidable. If an apparent agreement is too uncertain in its terms (e.g. because it is vague or essential terms are missing), the courts will not enforce it because they will not construct a binding contract for the parties. An apparent agreement may be void where the parties entered into the agreement under a ‘fundamental’ mistake which the law recognizes as preventing the parties from ever reaching agreement.
Chapter
7. Interpreting the terms
Construction, rectification, and mutual mistake
This chapter considers how the courts make sense of contracts whose terms are capable of more than one interpretation. It begins by discussing two broad approaches to construing contracts, both of which have influenced English law and both of which continue to form part of the law: literalism and contextualism. It then examines the role English law currently assigns to literalism and contextualism and how the courts decide which to apply, with particular emphasis on the Investors rule and contextual readings. It also evaluates an alternative remedy known as rectification and concludes with an analysis of the limits of construction and the law of mutual mistake.
