B.B.A, LL.B. (Hons.

Project Topic: Sowler v. Potter

Project Submitted to- Professor Meenaz Kazi.

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 Table of Contents
Serial Number Content Page Number

1. Introduction 3

2. Facts of the Case 4

3 Ratio 4

4. Case Analysis 4

5. Research Methodology 7

6. Research problems 8

7. Indian Cases 8

8. Relevant Laws 9

9. Current Scenario 10

10. Reviews 11

11. Conclusion 11

12. Bibliography 11

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Aim- Aim of this research paper is to analyze the case – Sowler v Potter and its judgement,
and to research on the similar case laws in Indian Context.

Introduction-
The case Sowler v. Potter talks about the unilateral mistake of identity in a contract. The
English law has divided the mistakes in to three types-
1. Unilateral mistake;
2. Mutual Mistake;
3. Common Mistake.
For the sake of this research, we will focus on the Unilateral mistake. Unilateral mistake is
where one party to a contract is mistaken as t the terms of subject matter. The courts will
uphold such contracts unless it was determined non-mistaken party was aware of the mistake
and tried to take advantage of the mistake1.
It is also possible for the contract to be void if there was a mistake in the identity of
contracting party. An example is in Lewis v. Averay2 where lord denning held that the
contract will be avoidable only if the aggrieved party could show that the identity of the party
at the time of contract was very important. A mere mistake as to the credibility of the party is
not sufficient.
Ordinarily, the unilateral mistake cannot make a contract void. Traditionally this is caveat
emptor (let the buyer beware), and under the common law caveat vanditor (let the seller
beware).
In the present case the defendant had been convicted of a particular offense and therefore
disguised herself under another name, and executed a contract with the plaintiff. This is a
particular case of unilateral mistake on the side of the plaintiff who sued the defendant for
hiding her identity.
According to the section 22, a contract is not voidable because it was caused by the parties to
it under the mistake to the matter of fact.
Such a mistake cannot invalidate the agreement. For example, ‘A’ and ‘B’ made a contract in
which only A was under the misbelief for any product which is in transaction. The contract
will not be voidable for A and will be classified as a valid contract.
In the further course of this research, we will figure out various case laws and judgments to
understand the concept in a much better way.

1
Smith v Hughes (1871) LR 6 QB 597
2
Lewis v Averay [1971] 3 All ER 907

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Facts of the case-
Name of the case – Sowler v. Potter3.
Plaintiff – Sowler.
Defendant – Potter.
Judge – Justice Tucker.
The defendant, Ann Robinson had been convicted of an offence of permitting disorderly
conduct in a café. In the month of June, she had written to the plaintiff’s agent and using the
false name of Ann Potter, offered to take the lease of Sowlers’ restaurant premises. In the
month of July, by a deed poll, she assumed the name of Ann Potter- same name she had used
earlier. In august a lease was executed, between Ann Potter and Sowler and Potter went into
possession.
Sowler then learned of her real identity and sued her in court claiming that the contract was
void ab intio.
Held: Accepting this argument.
Tucker J said: ‘This case of landlord and tenant is clearly a case where the consideration of
the person with whom the contract was made was a vital element in the contract, and that,
therefore, if there was any mistake on the part of the plaintiff with regard to the identity of the
person with whom she was contracting, the contract is void ab initio.’

Ratio –
The case is based on the principle of unilateral mistake and a contract arising out of such a
mistake. In the particular case the judgment was given in favour of the plaintiff stating that it
was the plaintiff’s fault in identifying the defendant.
A contract where one party makes a mistake will be void ab initio as the identity of the
defendant was vital to the plaintiff as the defendant had already been convicted of a crime in
that area and the plaintiff would have never leased out the land in case he knew the identity of
the defendant, therefore the contract is void ab initio.
Case Analysis –
The case is based on the principle of unilateral mistake, or the mistake from one party in a
contract.
The decision in the case of Sowler v. Potter has attracted universal criticism 4. To establish a
plea of mistake in this case, the plaintiff had to prove, as a question of fact, that she did not
3
 [1939] 4 All ER 478, [1940] 1 KB 271, 162 LT 12, 56 TLR 142, 84 Sol Jo 115.
4
The late Professor Winfield approved of the decisions and also of the obiter -dicta of A. L. Smith L.J. in
Gordon v. Street in the twelfth edition of Pollok on Contract at p. 381, note 10b.

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 intend to lease the premises to the defendant, and that the defendant was aware of the fact.
The trial judge was Tucker J., who employees the Pothier’s test not to decide whether
mistake exists, but merely as a preliminary before allowing the plaintiff to prove any mistake
with regard to the identity. Thus, he says “I think that this case of landlord and tenant is
clearly one where the consideration of the person with whom the contract is made was a vital
element in the contract, and that, therefore, if there was any mistake on the part of the
plaintiff with regard to the identity of a person with whom she was contracting, the contract
will be void ab initio”.
Having decided on the fact that any reasonable person would expect the plaintiff to be
concerned with the identity of the defendant, Tucker J. had then to decide whether in the
particular case the mistake existed or not?
Here there had been a request for references, proving the defendants’ identity was not
immaterial, but a definite intention not to indulge in a deal is really important. The final
decision on this point must be one fact, based n the evidence of each particular case. This line
is followed by Tucker J. when says, “The agent thought he was entering into a contract with
some other person, Ann Robinson who had been convicted of an offence sometime before
hand”.
In the case, this is not an allegation that the plaintiff would not have dealt with the defendant
in case she knew about her reputation, instead she stated that she never intended to deal with
this identifiable person.
Whether or not Tucker J. was correct in reaching this conclusion on the facts may be doubted,
but there can be no doubt that he was personally satisfied that the plaintiff did not intend to
make the contract with the defendant, and bases his decision on that ground. Any error on his
part would not be one of principle, but one of applying principle to facts, for the present
submission is that criticism based on the absence of a third identifiable person is unjustified.
Tucker J. based on his decision in the case of Gordan v. Street, outlined the facts of the case
in the manner in the same manner in the present case. His reasoning for giving a decision in
favour of the plaintiff was that the plaintiff was un aware of the identity of the person.

Cases of similar nature-

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 All ER 907, [1971] actor who played Robin Hood on television, and who sold it on to the
EWCA Civ 4 defendant.
Held: ‘When two parties have come to a contract or rather what
appears, on the fact of it, to be a contract – the fact that one party is
mistaken as to the identity of the other does not mean that there is no
contract, or that the contract is a nullity and void from the beginning.
It only means that the contract is voidable, that is, liable to be set
aside at the instance of the mistaken person, so long as he does so
before third parties have in good faith acquired rights under it.’ and
Mr. Lewis made a contract under which he sold the car to the rogue,
delivered the car and the logbook to him, and took a cheque in return.
The contract is evidenced by the receipts which were signed. It was,
of course, induced by fraud. The rogue made false representations as
to his identity. But it was still a contract, though voidable for fraud. It
was a contract under which this property passed to the rogue, and in
due course passed from the rogue to Mr. Averay, before the contract
was avoided.’
2. Ingram v. Little [1961] 1 Two ladies had a car for sale. A buyer came along. He fooled them
QB 31, [1960] EWCA Civ into believing him to be someone else, and they sold him the car,
1 after checking the name in the telephone directory. Before the cheque
bounced, the rogue sold the car to the defendant from whom the
ladies now sought the return of the car.
Held: Applying the rule nemo debt quod non habet, the car remained
the property of original owners. Phillips v Brooke differed in that
property had passed before the misrepresentation (majority). Devlin
LJ dissenting: ‘The true spirit of the common law is to override
theoretical distinctions when they stand in the way of doing practical
justice. For the doing of justice, the relevant question in this sort of
case is not whether the contract was void or voidable, but which of
two innocent parties shall suffer for the fraud of a third. The plain
answer is that the loss should be divided between them in such
proportion as is just in all the circumstances. If it be pure misfortune,
the loss should be borne equally; of the fault or imprudence of either
party has caused or contributed to the loss, it should be borne by that

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 party in the whole or in the greater part.’
Philips v. Brooks ltd. [1919] 2 KB A jeweller had a ring for sale. The buyer pretended to be somebody
243 else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The
jeweller had heard of Sir George Bullough and checked he lived at
the address given. He released the jewellery against his cheque. The
cheque was dishonoured, but the jewellery had been sold on. The
jeweller sought its return.
Held: The jeweller failed in his action, and title had passed. Horridge
adapted the judgment of Morton CJ in the Massachusetts case of
Edmunds v Merchants’ Despatch Transportation Co 135 Mass 283:
‘The fact that the seller was induced to sell by fraud of the buyer
made the sale voidable, not void. He could not have supposed that he
was selling to any other person; his intention was to sell to the person
present, and identified by sight and hearing; it does not defeat the sale
because the buyer assumed a false name, or practised any other deceit
to induce the vendor to sell.’

Research Methodology –
The researcher would like to propose the step-by-step methodology which will be
used by the researcher:
1. STEP 1: First and foremost, the facts of the case law will be researched and
understood.
2. STEP 2: Secondly, the various Indian Cases which had the same facts will be
researched.
3. STEP 3: Then the researcher would study the important articles and research papers
already written on the topic.
4. The researcher would then put forward his reviews on the judgement.
5. STEP 5: the researcher would also propose further enhancements, if required.

Research problem –
The researcher faced the following problems during the course of research-

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 1. The researcher could only carry out secondary research.
2. Could not study a wide array of articles due to paucity of time.
3. The researcher lacks a proper training in the subject.

Indian Cases –
1. One of the important Indian cases on the concept of unilateral mistake was of Dularia
Devi v. Janardan Singh and ors5 An illiterate woman put her thumb impression on
two documents thinking that both of them were to gift some property to her daughters.
Later she discovered that the second document was to defraud her out of more of her
property. Although this was a unilateral mistake on the part of the illiterate woman yet
since the consent for the said agreement was gained by fraud and the woman was not
aware of the nature of the transaction, the contract was held void by the courts. the
reason being that the defendants committed a fraud in order to take advantage of the
plaintiff’s situation.
2. In the case of Tarsem Singh v. Sukhminder Singh 6 The petitioner, who owned 48
kanals 11 marlas of agricultural land in village Panjetha, Tehsil and District Patiala,
entered into a contract for sale of that land with the respondent on 20-5-1988 @ Rs.
24,000/- per acre. At the time of the execution of the agreement, an amount of Rs.
77,000/- was paid to the petitioner as earnest money. Since the petitioner did not
execute the sale deed in favour of the respondent in terms of the agreement although
the respondent was ready and willing to perform his part of the contract, the latter,
namely, the respondent filed the suit for Specific Performance against the petitioner
which was decreed by the trial Court. The decree was modified in appeal by the
Additional District Judge who was of the opinion that the parties to the agreement,
namely, the petitioner and respondent both suffered from a mistake of fact as to the
area of the land which was proposed to be sold as also the price (sale-consideration)
whether it was to be paid at the rate of per "Bigha" or per "Kanal". The Lower
Appellate Court also found that the respondent was not ready and willing to perform
his part of the contract. Consequently, the decree for Specific Performance was not
passed but decree for refund of the earnest money of Rs. 77,000/- was passed against
the petitioner. The honourable apex court decided that the unilateral mistake is outside
the scope of section 20 of the Indian Contract Act.

5
1990 AIR 1173

6
AIR 1998 SC 1088

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 3. In the case of ITC Limited v. The state of U.P.7 the plaintiffs were mistaken about
the consideration involving transfer of property, the apex court held that the contract
cannot be void because one of the parties was mistake about the consideration of the
contract. The case defined the fact that the unilateral mistake doesn’t render a contract
voidable until one of the parties is being benefitted by that mistake.

Relevant laws –
The relevant sections related to the unilateral mistake are –
Section 20 - A contract will be considered void if both the parties to the agreement are under
a mistake as a matter of fact.
Section 21- of the Indian contract act says that the  contract cannot be said to be voidable just
because one of the parties to the contract was under a mistake as to a matter of fact concerned
to the contract. Therefore, a unilateral mistake does not affect the validity of the contract and
cannot be a ground for setting aside the contract in the court of law.
Section 22 – of the Indian Contract Act states that a contract cannot be voidable merely
because it was caused by one of the parties to it under the mistake of fact.
Exceptions of unilateral mistake
In case of a unilateral mistake, the contract can only be avoided if it is proved that the
contract was caused due to fraud or misrepresentation on the part of one of the parties to the
contract.
1. Mistake by one party as to the nature of contract- When a mistake is made by one of
the parties regarding the very nature of the contract being entered into and such a
mistake is known to the other party, such a contract is said to be void.
This may happen because while executing a contract, a party may not understand the
nature of the contract he is entering into either due to fraud or misrepresentation by
the other party or due to the old age or ill health of the person consenting to such a
contract.
2. Mistake by one party regarding the identities of the party- Generally, the identity of
the parties entering into an agreement is not essential to a contract. But in certain
cases, when a unilateral mistake is made regarding the identity of the parties to the
agreement due to misrepresentation by one party who claims himself to be someone
who he really is not, in such cases the agreement is said to be void.

7
AIR 2012 SC 1820

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Current scenario –
If the case of Sowler v. Potter, the identity was of substantiate importance in the course of
contract and therefore the case if happened today in India, would have the same judgement.
Unilateral mistake as mentioned in the section 22 states that - Contract caused by mistake of
one party as to matter of fact. — A contract is not voidable merely because it was caused by
one of the parties to it being under a mistake as to a matter of fact.
Section 22 of the act says that a contract cannot be said to be voidable just because one of the
parties to the contract was under a mistake as to a matter of fact concerned to the contract.
Therefore, a unilateral mistake does not affect the validity of the contract and cannot be a
ground for setting aside the contract in the court of law.
In the case of Tapline vs. Jainee8 The buyer at an auction brought a property described with
reference to a plan. The buyer was under the assumption that he was well versed with the
property and therefore did not refer to the plan. Later he discovered that a garden plot which
he thought was a part of the property was not in fact included in the plan. It was held that the
buyer cannot revoke the contract on the grounds of the unilateral mistake made by him and
was bound by the contract.
Exceptions under the Unilateral mistake –
1. Mistake by one party as to the nature of the contract
When a mistake is made by one of the parties regarding the very nature of the contract
being entered into and such a mistake is known to the other party, such a contract is
said to be void.
This may happen because while executing a contract, a party may not understand the
nature of the contract he is entering into either due to fraud or misrepresentation by
the other party or due to the old age or ill health of the person consenting to such a
contract.
2. Mistake by one party regarding the identity of the parties to the agreement-
Generally, the identity of the parties entering into an agreement is not essential to a
contract. But in certain cases, when a unilateral mistake is made regarding the identity
of the parties to the agreement due to misrepresentation by one party who claims
himself to be someone who he really is not, in such cases the agreement is said to be
void.

8
(1880)

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Unilateral Mistake makes a contract voidable:
If any unilateral mistake is induced by fraud or misrepresentation, then the contract is
voidable for that party who has done the mistake in the contract. In simple words, if ‘A’
creates such types of situations and do such types of activities in order to deceive ‘B’ and ‘B’
has also done a mistake as a result of A’s action and made a contract with ‘A’. Then, Contract
will be voidable at the option of ‘B’.

Reviews –
The given case on Unilateral Mistake is definitely under the exceptions of the section 22 of
the Indian Contract Act, 1872. the mistake of identity is absolutely important in the case of
Sowler v. Potter, as the plaintiff would have never leased out her property to the defendant if
she knew about the latter’s rea identity.
The researcher is of the opinion that the cases in which the identity is wilfully hidden or
presented under a false narrative should amount to fraud and therefore such contracts should
be considered as void ab initio. The courts should protect the rights of the contracting parties
in the case where the identity is absolutely important and can have a substantial effect on the
contract itself. \

Conclusion –
The validity of a contract is hindered when consent is gained due to a mistake by the parties. As
discussed, a mistake can be of two types, Mistake of fact and Mistake of law. When consent to a
contract is gained due to a bilateral mistake of fact, the contract is said to be void but when the
mistake occurs due to a unilateral mistake of fact, the agreement is valid except in the cases of
mistake regarding the nature of the contract or identity of the parties to the contract. Similarly,
when consent to a contract is gained due to a mistake of the Indian law it is a valid contract but if
it is due a foreign law by both the parties, the contract is said to be void.
The section 22 of the Indian Contract Act talks about the Unilateral mistake and makes it clear
that the contract can only be void in cases where the identity of parties is of substantiate
importance. Therefore, each and every unilateral mistake cannot void a contract until and unless
it falls under the given exceptions.

Bibliography

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1. J.F. Wilson (1954), Identity in Contract and the Pothier Fallacy, The Modern Law
Review (17th Volume).
2. H.W.R Wade (1941), Mistake and Impossibility in Contract, The Cambridge Law
Journal (7th Volume).
3. J. Unger (1955), Identity in Contract and Mr. Wilson’s Fallacy, Modern Law Review
(18th Volume).
4. Mariya Paliwala, 2019. Mistake Under Contract Act, 1872.
https://blog.ipleaders.in/mistake-under-contract-
law/#Cases_in_which_Unilateral_Mistake_makes_a_contract_void_and_voidable
(Accessed 14th June).
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contract-act1872/ (Accessed 15th June).
6. Law Bhoomi, 2020. Mistake Under the Indian Contract Act.
https://lawbhoomi.com/provision-of-mistake-under-indian-contract-act-1872/ (Accessed
12th June)
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(Accessed 12th June).
8. Manitoba Law Journal, 1969. Mistake as to a person.
Lawhttps://heinonline.org/HOL/LandingPage?
handle=hein.journals/manitob3&div=30&id=&page=(Accessed 10th June).
9. Legal Match, 2020. Unilateral Mistakes in a Contract.
https://www.legalmatch.com/law-library/article/unilateral-mistakes-in-a-contract.html
(Accessed 10th June).
10. Legalmax.info. 2021. Contract Law Cases & Materials. [online] Available at:
<https://legalmax.info/conbook/index.htm#t=victoria.htm> (Accessed 13th June
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https://indiankanoon.org/doc/365379/ (Accessed 12th June).
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https://indiankanoon.org/doc/247033/ (Accessed 12th June)

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13. Indian Kanoon, 2011. ITC Limited v. State of UP
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