(BQ) Part 2 book "Law of contract" has contents: Duress, undue influence and inequality of bargaining power; discharge by performance and breach; discharge by performance and breach, discharge by frustration; the common law remedy of damages; equitable remedies and limitation of actions,.and other contents. | 10 Mistake Aims and objectives After reading this chapter you should be able to: l Understand the nature of mistake as a vitiating factor and how an ‘operative’ mistake arises. l Know that mistake renders a contract void ab initio where there is a mistake of fact. l Recognise the incidence of mistakes of law and how the effect of this differs from a mistake off act. l Recognise and understand the different types of mistake, . common mistakes, mutual mistakes and unilateral mistakes, and the effects of each both on the parties to the contract and third parties. l Appreciate the nature of mistake in equity and how this differs from mistake at common law. l Know and understand mistake as to the nature of the document signed or non est factum. Introduction We saw in Chapter 1 that in the nineteenth century the theory of contractual obligation was based on that of consensus ad idem. The courts were willing to intervene if it could be shown that the contract lacked consensus, on the basis that genuine consent to the agreement was non-existent. This being the case the courts would find that there was no valid contract, thereby relieving the parties of their rights and liabilities under the contract. The twentieth century saw a marked change in the willingness of the courts to allow a mistake of the parties to vitiate the existence of a contract. The courts began to realise that many contracts coming before them where mistake was alleged were for the most part commercial contracts entered into by businesspeople at arm’s length. The attitude of the judiciary was that such people ought to be held to the bargain they had freely entered into and that, initially, the power lay with these individuals to draft their contracts in such a way as to account for factors that might only come to light after the contract was entered into. A further aspect that promoted the change of attitude was the effect of the finding of mistake at common law on .
