Mistake

Question 1

what is the effect of a mistake in contract?

Answer 1

Contract is void from the outset.

Question 2

what is a common mistake?

Answer 2

occurs where both parties are suffering from the same misapprehension.
- mistakes about the quality of the goods does not void the contract
- depends how severe the difference is.

Question 3

what is a mutual mistake?

Answer 3

where both parties are mistaken but mistaken about different things.

Question 4

what is a unilateral mistake>

Answer 4

where only one party is mistake and the other party knows or is deemed to know, of the mistake.

Question 5

what are the three circumstances where common mistake will not operate?

Answer 5

1. mistake is not sufficiently fundamental.
2. one party is at fault.
3. contract makes provision for the issue.

Question 6

what happens in unilateral mistake of identity?

Answer 6

in face to face transactions the court will presume that the seller intended to deal with the person in front of them.
- difficult presumption to rebut and requires the seller to show that identify, not attributes, was of ‘vital importance’.
- when contracting in wiriting, it is easier for the seller to show that they intended only to deal with the person named in the correspondence and if proved the finding of a mistake will follow.

Question 7

what is the current rule on illegality?

Answer 7

1. to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by the denial of the claim.
2. to consider any other relevant public policy on which the denial of the claim may have an impact.
3. to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.

Question 8

what is the remedy for operative mistake

Answer 8

contract is void!