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.
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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.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter discusses the various ways of classifying mistakes including communication mistakes, mistakes of fact, common mistake and unilateral mistake. It then looks at the case law on mistaken identity and the distinctions between face-to-face and correspondence contracts. Finally, it looks at the restrictive rules on common mistake, including the difference between fundamental mistake and mistake as to quality, and their relationship with the doctrine of frustration and the demise of the category of equitable mistake.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter discusses the various ways of classifying mistakes including communication mistakes, mistakes of fact, common mistake and unilateral mistake. It then looks at the case law on mistaken identity and the distinctions between face-to-face and correspondence contracts. Finally, it looks at the restrictive rules on common mistake, including the difference between fundamental mistake and mistake as to quality, and their relationship with the doctrine of frustration and the demise of the category of equitable mistake.
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Rectification is an equitable remedy through which the court can rectify, or correct, a mistake in a written contract. This chapter examines two principal forms of rectification: common mistake rectification and unilateral mistake rectification. Rectification for common mistake arises where both parties make the same mistake. This is the better-established form of rectification. However, in some circumstances rectification for unilateral mistake will be granted in situations where only one party is mistaken but the other party has acted unconscionably or dishonestly. A party seeking rectification will need convincing proof that a mistake has been made before the court will contemplate altering the language chosen in a formal, written document.
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Rectification is an equitable remedy through which the court can rectify, or correct a mistake in a written contract. This chapter examines two principal forms of rectification: common mistake rectification and unilateral mistake rectification. Rectification for common mistake arises where both parties make the same mistake. This is the better-established form of rectification. However, in some circumstances rectification for unilateral mistake will be granted in situations where only one party is mistaken but the other party has acted unconscionably or dishonestly. A party seeking rectification will need convincing proof that a mistake has been made before the court will contemplate altering the language chosen in a formal, written document.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.
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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.
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This chapter deals with mistake. First it looks at mistake in relation to the agreement, exploring the relevance of the identity and attributes distinction and its application in case law including the important decision of the House of Lords in Shogun Finance Ltd v Hudson. The equitable jurisdiction of the courts permits a more flexible approach and this too is considered. Second, the chapter explores mistake relating to questions of performability, often referred to as common mistake. In a situation where both parties share the same misapprehension about an underlying fact, this could constitute a mistake as to the existence, or a mistake as to the quality, of the subject matter. The significance of the leading case of Great Peace Shipping Ltd and its influence on the scope of common mistake is dealt with. The possibility of a document being signed by mistake is also addressed.
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This chapter deals with mistake. First it looks at mistake in relation to the agreement, exploring the relevance of the identity and attributes distinction and its application in case law including the important decision of the House of Lords in Shogun Finance Ltd v Hudson. The equitable jurisdiction of the courts permits a more flexible approach and this is explored. The equitable remedy of rectification and the implications of the decision in FSHC Holdings v GLAS Trust are also considered. Second, the chapter explores mistake relating to questions of performability, often referred to as common mistake. In a situation where both parties share the same misapprehension about an underlying fact, this could constitute a mistake as to the existence, or a mistake as to the quality, of the subject matter. The significance of the leading case of Great Peace Shipping Ltd and its influence on the scope of common mistake is dealt with. The possibility of a document being signed by mistake is also addressed.
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Essential Cases: Criminal Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (Monica) v DPP. The document also included supporting commentary from author Jonathan Herring.
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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.
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Essential Cases: Criminal Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (Monica) v DPP. The document also included supporting commentary from author Jonathan Herring.
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Essential Cases: Criminal Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (Monica) v DPP. The document also included supporting commentary from author Jonathan Herring.
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This chapter assesses situations in which one or both parties enter into a contract on the basis of a mistake that is so serious that it negates their consent to a contract; or, it means they did not consent to the agreement in the first place. Following such an ‘operative’ mistake, the contract will be void from the start and therefore treated as though a valid contract never existed. The chapter then considers the law on mistake. It starts with mistakes that prevent the formation of an agreement. The most significant mistake of this type is known as a ‘unilateral mistake’, which is where one party appears to have entered the contract on the basis of a mistake. The next significant issue is known as ‘common mistake’, which is where, at the time of creating the contract, both parties appear to be making the same mistake about the existence of an essential state of affairs. Finally, the chapter addresses the related remedy of equitable rectification before finally turning to the highly exceptional defence of non est factum.
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Robert Merkin, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on 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.
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Robert Merkin and Séverine Saintier
Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter focuses on the legal treatment of mistakes that are presumed to nullify consent if both parties entered into the contract under the same fundamental mistake, assuming the absence of a provision of the contract allocating the risk of this initial impossibility. 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. Under these circumstances, the contract is automatically void and any money or property involved has to be returned. Fine distinctions can arise in terms of the legal treatment of impossibility 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 very rarely be sufficiently fundamental to render the contract void since impossibility of the contractual adventure is required. 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 which were rejected in Great Peace Shipping Ltd v Tsavliris (International) Ltd and the fact that this means there is no remedial flexibility in such instances.
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Robert Merkin and Séverine Saintier
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 mutual 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.
