Mistake
Intro
R is advise as a general rule, a mistake will not affect a contract. There is no doctrine of mistake as such, but the
common law will be recognised certain mistake that are fundamental in nature. These types of mistake are
known as operative mistakes and will render a contract void, ab inito. This means that the contract is treated
as thought it never existed and the parties are returned to their pre-contractual position.
R is advise traditionally the court have been reluctant to recognise a mistake as being operative, mainly due to
the extreme effect on third party. A third party may have purchased goods innocently, only to find that they do
not have good title (nemo dat quod non habet) and the goods have to be returned to the original owner.
Body
R is advise that mistake can be made by bilateral or unilateral.
R is advise Bilateral mistake where both parties made a mistake either by cross purpose or common mistake.
The cross purpose is also known as absent of genuine agreement. This is where each party make mistake and
they do not share the mistake. Raffles v Wichelhaus & Scriven Bros & Co v Hindley
The common mistake where both parties are mistaken and they share the mistake and the mistake relate to
critical element of contract.
1. Res extincta means that subject matter of the contract did not exist at the time that the contract was
formed. The parties will have contracted under the mistaken belief that the subject matter was in
existence. In such instance the mistake will be operative, and the contract will be void. Couturier v
Hastie / S.6 SOGA. An exception will occur if the offeror took the risk and has guaranteed the existence
of the subject matter then the contract will be void and if offeree took the risk and bought interest in
the adventure then contract is valid as in McRae v Common Wealth Disposal Commission.
2. Res sua mean is a party mistakenly contract to purchase something, which unbeknown to himself, he
already owns, the mistake will be operative and the contract void. Cooper v Phibbs.
3. Possibility of Performance
(a) Physical Impossibility – Sheikh Brother v Ochsner
(b) Legal Impossibility – Cooper v Phibbs
(c) Commercial Impossibility – Griffith v Brymes
4. Quality of subject matter of the contract which has been agreed, the contract will still valid. An
exception will occur if it is made by both parties and concern the existence of some quality which makes
the thing without the quality fundamentally different from the thing it was understood to be, then the
contact can be set aside.
Common Law
Bell v Lever Brother Ltd
Associated Japanese Bank Ltd v Credit du Nord SA
Nicholson and Venn v Smith Marriot
Scott v Coulson
Court refuse to set aside the contract
Harrison & Jones v Burton Cancester
Oscar Chess v William
Leaf v International Gallaries
Lord Denning in 1950 was opined that common mistake as to quality that its operate with very narrow.
He come with mistake under equity
Intro
R is advise as a general rule, a mistake will not affect a contract. There is no doctrine of mistake as such, but the
common law will be recognised certain mistake that are fundamental in nature. These types of mistake are
known as operative mistakes and will render a contract void, ab inito. This means that the contract is treated
as thought it never existed and the parties are returned to their pre-contractual position.
R is advise traditionally the court have been reluctant to recognise a mistake as being operative, mainly due to
the extreme effect on third party. A third party may have purchased goods innocently, only to find that they do
not have good title (nemo dat quod non habet) and the goods have to be returned to the original owner.
Body
R is advise that mistake can be made by bilateral or unilateral.
R is advise Bilateral mistake where both parties made a mistake either by cross purpose or common mistake.
The cross purpose is also known as absent of genuine agreement. This is where each party make mistake and
they do not share the mistake. Raffles v Wichelhaus & Scriven Bros & Co v Hindley
The common mistake where both parties are mistaken and they share the mistake and the mistake relate to
critical element of contract.
1. Res extincta means that subject matter of the contract did not exist at the time that the contract was
formed. The parties will have contracted under the mistaken belief that the subject matter was in
existence. In such instance the mistake will be operative, and the contract will be void. Couturier v
Hastie / S.6 SOGA. An exception will occur if the offeror took the risk and has guaranteed the existence
of the subject matter then the contract will be void and if offeree took the risk and bought interest in
the adventure then contract is valid as in McRae v Common Wealth Disposal Commission.
2. Res sua mean is a party mistakenly contract to purchase something, which unbeknown to himself, he
already owns, the mistake will be operative and the contract void. Cooper v Phibbs.
3. Possibility of Performance
(a) Physical Impossibility – Sheikh Brother v Ochsner
(b) Legal Impossibility – Cooper v Phibbs
(c) Commercial Impossibility – Griffith v Brymes
4. Quality of subject matter of the contract which has been agreed, the contract will still valid. An
exception will occur if it is made by both parties and concern the existence of some quality which makes
the thing without the quality fundamentally different from the thing it was understood to be, then the
contact can be set aside.
Common Law
Bell v Lever Brother Ltd
Associated Japanese Bank Ltd v Credit du Nord SA
Nicholson and Venn v Smith Marriot
Scott v Coulson
Court refuse to set aside the contract
Harrison & Jones v Burton Cancester
Oscar Chess v William
Leaf v International Gallaries
Lord Denning in 1950 was opined that common mistake as to quality that its operate with very narrow.
He come with mistake under equity
