SEM 2, LECT 9 - MISTAKEN IDENTITY - CONTRACT, 14/02/2020 Mistaken Identity A certain Jackie enters an antique shop in London Issues She negotiates the purchase of a gold watch worth £500,000 and in the process says to the shop owner 'my name is Jackie Collins, you know, as in the novelist' The owner is star- struck and accepts a cheque which turns out to be worthless. - Distinguishing between mistake as to identity and mistake as to attributes. - Contracts made at a distance (not face-to-face). - Contracts made face-to-face (inter praesentes). - Contracts made through an intermediary. - Justification of the current law and questions of fairness. General Rule - In order to be operative, the mistake must relate to the identity of the person with whom you are contracting, not his or her attributes. - Is this a meaningful distinction? - 'A distinction without a difference' (Lord Denning, in Lewis v Averay) 'A man's name is one of his attributes. It is also a key to his identity. If, then, he gives a false name, is it a mistake as to his identity? Or a mistake as to his attributes?
Contracts not made Face-to-Face - Boulton v Jones (1857) o Defendant sent an order to one 'Brocklehurst' with whom he had dealt regularly. o Brocklehurst had however transferred his business to his foreman, who then fulfilled the order. o Defendant resisted a claim for payment by the foreman based on the argument of 'set-off'. o Held: the identity of Brocklehurst was important to the defendant and the contract was void. - Cundy v Lindsay (1878) o ‘Ofhim [Blenkarn], they [the plaintiffs] knew nothing, and of him they never thought. With him they never intended to deal ... ' " Lord Cairns o Contract was void for mistake as to identity - King's Norton Metal Co. v Edridge, Merrett & Co. (1897) o Mistaken party must be able to show who it was that was the intended contracting party. o Here, mistake was of attributes, not identity. Contracts made Face-to-Face - Phillips v Brooks (1919) " Identity wasn't of utmost importance - Lewis v Averay (1972) - Ingram v Little (1961) - o Identity was of the utmost importance, so contract was void for mistake Shogun Finance Ltd. v Hudson (2003) Contracts made through an Intermediary - Shogun Finance Ltd. v Hudson (2003) o Is this a fair approach? o 'We cannot leave the law as it is. It is neither fair nor principled, and not all of the authorities can be reconciled; some, at least, must be overruled if it is to be extricated from the present quagmire.' " Lord Millet, minority judgment House of Lords - Hardman v Booth (1863) o Plaintiff approached a firm called Thomas Gandell & Sons. o Plaintiff dealt with Edward Gandell, a member of the family, who was supposedly acting for the firm.
o In fact, Edward Gandell was acting on his own account and intercepted the goods sent by the