Seminar 7 Mistake Read 2-3 Textbooks. Some argue that mistake is not a recognised legal principle - Mccrendick 1. Advise the parties in all of the following scenarios: Mistake will render a contract void. When a contract is rendered void, there is nothing you can do to make the contract valid. You have to redraft the contract totally. What unifies these mistake is they render the contract void. There are 3 different types of legal approaches to answer 3 different questions. There is no overlap between these principles. Mistake to render the contract void a) Common Mistake. There was no term of the contract that said that the painting was the work of an old master. Therefore there could not be no breach. No remedy for breach but could be a remedy for misrepresentation. They are in agreement. b) Cross Purposes Mistake. Raffles case - there are times where the offer looks like it matches the acceptance. In this case they have not stated which ship they mean. One mean the ship sailing in October whereas the other means the ship sailing in December. Mistake may be a better way to answer the question in Raffles. The offer and acceptance are not for the same item. The offer does not match the acceptance. Discern the parties intentions. What is the objective intentions of the parties? The contract is rendered void for mistake because there is no agreement. Constructive approach - understanding the intentions of the parties. They are not in agreement. c) Unilateral Mistake Unilateral mistake generally developed on its own. Unilateral mistake in general not in identity. Hattell v College Shields Case of Smith For unilateral mistake 2 things need to be determined 1) what one party is mistaken about is a term of the contract 2) the other party is aware of the other party's mistake B makes a misrepresentation to A so the contract is voidable. One of the bars to rescission is where a third party acquiries legal title in good faith. If C is sued he has not made any misrepresentation,. it is not possible to make a claim in misrepresentation. Legal title can pass where there has been a misrepresentation but cannot pass when there is a mistake. Can try in mistake. If you can prove both things then the contract will be voidable in mistake. Mistake as to attributes is not a mistake but is more likely to be considered misrepresentation. It does not mean that something that is important in the agreement will be a term in the contract.
Question 2 There is a common law doctrine of common mistake. However, there is a debate whether it is. When you have two parties mistaken about the existence of the contract Bell and Lever Bros is the classic case in this area. Whether common mistake in common law exist? Bell and Great Peace both come to a conclusion that common law does not exist in those particular cases. However, in Cargo Corn the