Is There Actually A Doctrine Of Mistake At All Notes
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Is There Actually A Doctrine Of Mistake At All Revision
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The "offer and acceptance" view • With unilateral mistake o Slade: if parties are said to have objectively agreed on something and neither is aware of the others actual intentions Then the contract is formed • There is no question of "mistake" unless the conduct of that mistake shows that there is objectively, to a reasonable man, no agreement. o Only where V meant to make an offer or acceptance in one sense And E is aware of this • Can E not hold V to the contract o E.g. Hartog v Colin & Shield's: Singleton J: the offer was wrongly expressed and D by their evidence have satisfied me • that C could not reasonably believe the offer contained the offeror's real intentions • Slade: decision is based not on C's knowledge of the seller's mistake o But because there was no consensus of the terms of the contract • Moi: takes a rather simplistic view of things - surely courts were also looking unfavourably on the "snapping up" of the offer by C which showed clear knowledge of D's mistake o Both, on paper, were agreeing to the same thing. The "implied terms" view • Questions of mistake = merely questions of risk allocation which in turn are questions of construction o Slade's view If a contract is avoided then this is because parties have themselves provided this solution impliedly from the contract itself • Not because the law has imposed this - courts can only discover what to do from the intentions of the parties themselves Bell v Lever Bros: • Lord Atkin: the proposition does not amount to more than this - o that if the contract expressly or impliedly contains a term that a particular assumption is a condition of the contract The contract is avoided if the assumption is not true • Policy reasons dictate this should be the case: o Mistake should not be used to get out of a bad bargain/undermine risk allocation of contract o Need to promote certainty by upholding parties' apparent (objective) intention o Need to reward more knowledgeable parties and allow them to take advantage of the less knowledgeable in a free market system o Means courts don't appear to be interfering with the contract • Rejection of this view o Chen Wishart:
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