COMMON MISTAKE IN CONTRACT LAW

Author(s): David Capper

Source: Singapore Journal of Legal Studies , December 2009, (December 2009), pp. 457-
473
Published by: National University of Singapore (Faculty of Law)

Stable URL: https://www.jstor.org/stable/24870526

REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/24870526?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

National University of Singapore (Faculty of Law) is collaborating with JSTOR to digitize,

preserve and extend access to Singapore Journal of Legal Studies

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Singapore Journal of Legal Studies
[2009] 457-^73

COMMON MISTAKE IN CONTRACT LAW

David Capper*

English Contract Law has long struggled to understand the effect of a fundamental common mistak
in contract formation. Bell v. Lever Brothers Lid. [1932]A.C. 161 recognises that a common mistak
which totally undermines a contract renders it void. Solle v. Butcher [ 1950] 1 K.B. 671 recognises
doctrine of 'mistake in equity' under which a serious common mistake in contract formation fallin
short of totally undermining the contract could give an adversely affected party the right to rescind
the contract. This article accepts that the enormous difficulty in differentiating these two kinds o
mistake justifies the insistence by the Court of Appeal in The Great Peace [2003] Q.B. 679 that ther
can be only one doctrine of common mistake. However, the article proceeds to argue that where th
risk of the commonly mistaken matter is not allocated by the contract itself a better doctrine would
be that the contract is voidable.

I. Introduction

A common mistake in Contract Law is one shared by both parties to the co

must relate to a matter of existing fact or law1 and can affect the contract in
ways. First, it can prevent agreement being reached either through the par
to produce a matching offer and acceptance on a matter essential for an ag
Secondly, the parties may have reached agreement but "share an error wit
to some important contextual circumstance".2 In the former case no
formed because one of the conditions for making a valid and enforceable
has not been met. In the latter case there appears to be a contract but there
as to whether that contract has been vitiated to some extent. This vitiation could
potentially take three broad forms:

(1) It might totally undermine the contract to the extent that the contract is
completely void. A contract that is void is the same in effect as a contract
which is not formed.

Reader in Law, Queen's University Belfast. This article is a revised version of a lecture delivered at the
Institute of Commercial and Corporate Law at Durham University on 13 March 2009. Thanks are very
much due to the anonymous referee for comments upon an earlier draft. The author remains responsible
for any errors.
This would seem to follow from the abolition of the mistake of law rule in Restitution; see Kleinwort
Benson Ltd v. Lincoln City Council [1999] 2 A.C. 349.
- John D. McCamus, "Mistaken Assumptions in Equity: Sound Doctrine or Chimera?" (2004) 40
Can. Bus. L.J. 46 at 47.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
458 Singapore Journal of Legal Studies [2009]

(2) It might result in a valid but defective contr

right to seek rescission3 of the contract. In p
more adversely affected by the common mista
and the contract would be voidable, not void.
(3) Although one or both parties might not have
aware of the true position the vitiation is not su
legal intervention.

English law only recognises situations (1) and (3

the Court of Appeal in Great Peace Shipping Ltd v
Ltd, The Great Peace4 English law did sometime
equity which rendered a contract voidable at the in
however, it is committed to an 'all or nothing' ap
is to challenge that approach but not through resu
contended that there are some cases where a contr
mistake is made in its formation, that mistake is n
least not the party seeking relief, and where sever
party if it were compelled to perform. Cases answe
into category (2) above, should be cases where the
mistake may request the court to rescind the contr
of this proposition probably would come at some e
and the legitimate expectations of contracting part
appears to provide for should be enforced.5 This m
this ground only be afforded in exceptional circu
issue in detail some preliminary issues need to be

II. Failure to Reach Agreement

This class of cases can be disposed of quite expeditiously. No co

formed where the parties do not make a matching offer and acceptan
v. Wichelhaus6 is often presented as an example of this phenomenon but t
of any reasons for the House of Lords' decision is also consistent with th
sition that the seller lost for failing to deliver cotton on the agreed ship
Brothers & Co. v. Hindley & Co.8 is a better example. The sellers' acti

In other contexts where rescission may be available, e.g. misrepresentation, the remedy m
of the party itself. See Janet O' Sullivan, "Rescission as a Self-help Remedy: a Critical An
Cambridge L.J. 509. However in the context of common mistake, where the party against
is sought is not guilty of fault as such, it would seem necessary to seek the remedy from t
[2003] Q.B. 679 (EWCA Civ) [The Great Peace], For a very thorough discussion of comm
in light of this case see Adrian Chandler, James Devenney & Jill Poole, "Common Mistake
Justification and Remedial Inflexibility" (2004) J. Bus. L. 34.
In Associated Japanese Bank (International) Ltd v. Credit du Nord S.A. [1989] 1 W.L.R.
[.Associated Japanese Bank] at 257. Steyn J. expressed the problem thus:
Throughout the law of contract two themes regularly recur—respect for the sanctity of co
the need to give effect to the reasonable expectations of honest men. Usually, these th
in the same direction. Occasionally they point to opposite solutions. The law regard
mistake going to the root of a contract is a case where tension arises between the two
(1864) 2 H. & C. 906 (Ct. of Ex.).
Edwin Peel, Treitel on the Law of Contract, 12th ed. (London: Sweet & Maxwell, 2007)
[1913] 3 K B. 564.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 459

price was dismissed because they could not reasonably have

extravagant bid was for the item for which they sought pay

III. Allocation of Risk

Where the problem with the contract is a shared misassumption it is g

accepted that the first question to ask is whether the contract expressly or b
cation allocates the risk of the unanticipated occurrence to one of the parties
idea seems confusing at first. If the common mistake makes the contract voi
void contract means the same thing as a contract that is not formed how can a s
be found in the contract itself? The answer is that because a coinciding off
acceptance has taken place there is at least the shell of a contract in existenc
must next be determined is whether the shell contains any substance. If it co
anything which allocates the risk of the unanticipated occurrence to a party t
party will be liable for breach. McRaei0 provides a clear illustration of this s
The defendants sold a tanker supposedly at the bottom of the Pacific Ocean
plaintiffs. The plaintiffs were unable to find it for the simple reason that it
exist. They sued the defendants for breach of contract and the defendants' d
of common mistaken belief in the existence of the tanker was dismissed because the
contract contained an implied contractual promise that it did exist. The breach of
contract was the non-existence of the promised tanker. If there had been no allocation
of risk to the defendants they would have succeeded on the basis of the res extincta
doctrine below.

Professor Sir John Smith and others have argued that the implied term theory can
be taken further such that where there is no express or implied allocation of risk
the contract is void because of an implied condition precedent to the effect that the
assumed circumstances must exist otherwise there is no contract.11 Whatever the
merits of this theory it is unnecessary to explore it further in this article. The theory
attempts to provide a rationale for those cases where a contract is not formed. This
article acknowledges that there are such cases but also contends that there are other
cases where a contract is formed and where relief not currently available should be
afforded in exceptional circumstances.

IV. No Contractual Subject Matter

In these cases the common misassumption is that there is anything to contr

There are two cases where a misassumption of this kind by both parties may v

McRae v. Commonwealth Disposals Commission [1951] 84 C.L.R. 377 (H.C.A.) [McRae] ;

Japanese Bank, supra note 5; William Sindall Pic v. Cambridgeshire CC [1994] 1 W.L.R.
Civ) [William Sindall].
Ibid.

C.J. Slade, "The Myth of Mistake in the English Law of Contract" (1954) 70 L.Q.R. 38
Owen Shatwell, "The Supposed Doctrine of Mistake in Contract: A Comedy of Errors
Can. Bar Rev. 164; RS. Atiyah & F.A.R. Bennion, "Mistake in the Construction of Cont
24 Mod. L. Rev. 421; Lee Bowes McTurnan, "An Approach to Common Mistake in E
(1963) 41 Can. Bar Rev. 1; J.C. Smith, "Contracts—Mistake, Frustration and Implied Te
110 L.Q.R. 400.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
 460 Singapore Journal of Legal Studies [2009]

contract. The more typical, although by no means

is where the subject matter of the contract does no
A good illustration is provided by the McRae case
extincta defence failed because contractual subject
contractual promise that the tanker did exist.13
Res extincta has arisen in contexts far removed
loway v. Galloway14 the parties made a separation
in ignorance of the fact that they had never been
sumed to be deceased former wife was still alive.
agreement was void for this mutual mistake of fac
agreement. With respect, it was not really the mist
The parties attempted to end their 'marriage' but
no marriage to end.
In cases of res extincta the contract is void beca
about, not truly because of mistake. Cases are rare
through construction techniques, to find some alte
either in one party's promise that the subject of a s
by construing the contract as one to provide finan
relationship.15
The second and less common case where there is
tual subject matter is res sua. Here the purchaser
owns an interest in it equal to or greater than wha
illustrated by the Irish case of Cooper v. Phibbs.]6
fishery but the lessee was already the holder of a f
lease was rescinded which might make it seem lik
than void but this case was brought in the Irish Co
ture Acts presumably because it was necessary to
had better machinery for doing this. The contrac
subject matter that could have passed under it. A s
than res sua is where the seller of property has n
like these the seller is in breach of an implied con
cient title to sell17 or the parties agree that the buy
seller has.

Res sua, like res extincta, is a case where the shell of a contract is apparent but on
examination it turns out that there is no content to the shell. In this sense the contract
is void. We now proceed to other mistaken assumption cases where both shell and
content are usually indisputable. English Law currently takes the position here that

See supra note 10 and accompanying text.

An implied contractual promise that the subject matter does exist will usually be the answer in sale of
goods cases. See Couturier v. Hastie (1856) 5 H.L. Cas. 673; P.S. Atiyah, "Couturier v. Hastie and the
Sale of Non-Existent Goods" (1957) 73 L.Q.R. 340; Gerand McMeel, "Interpretation and Mistake in
Contract Law: "The Fox Knows Many Things"" (2006) L.M.C.L.Q. 49 at 58.
(1914) 30T.L.R. 531.
As Professor McMeel has pointed out, supra note 13, construction techniques can solve many but not
all problems in this area.
(1867) L.R. 2 H.L. 149. The story of this complex case is well explained in Paul Matthews, "A Note on
Cooper v. Phibbs" (1989) 105 L.Q.R. 599.
E.g., Sale of Goods Act 1979 (U.K.), 1979, c. 54, s. 12.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 461

there can only be relief where the contract is shown to be vo

This happens so rarely that relief against the consequences
hardly ever granted. This article calls for a modest relaxation
extent of recognising that mistakes of this kind may occasio
affected party to rescind the contract. Shell and content are p
significantly different from what the parties thought it would
may be said that treating cases of res extincta and res sua as
litigants of the more flexible remedial regime supported in th
can be offered that true cases of res extincta and res sua are
always the better analysis will be that the contractual substa
the party seeking relief has a claim for breach of contract a
common mistake.

V. Defective Contracts

A defective contract is one where the shell of a contract indisputably exists an

there is no apparent basis for the contention that it lacks content. But that con
turns out to be significantly different from the parties' expectations, and/or fact
discovered after the contract is made which call seriously into question whether
parties would ever have made that contract had they been aware of those facts.
The leading case of Bell v. Lever Brothers18 is authority for the proposition th
common mistake about the quality of the subject matter of a contract will under
the parties' assent and make the contract void where that mistake "makes the th
without the quality essentially different from the thing as it was believed to be
Some examples were given of mistakes not sufficiently serious to merit relief
purchase of an unsound horse believed to be sound, a picture believed to be by
master turning out to be a copy, and an uninhabitable furnished house.20 That t
test is very difficult to satisfy is clearly demonstrated by these examples and the r
in Bell v. Lever Brothers but one has to question whether Lever Brothers' did not
assume the risk that there were no grounds for dismissing Bell and Snelling wit
compensation.
Bell v. Lever Brothers is a very difficult test to satisfy but at least it makes t
law clear. The law became very unclear, however, after the decision of the Cou
of Appeal in Solle v. Butcher21 Denning L.J.'s judgment, with which Buck
L.J. agreed, has been understood to mean that Bell v. Lever Brothers appli
those mistakes which prevented a contract from being formed; and that there w
further doctrine of 'mistake in equity' which merely vitiated the contract.22 Vit

[1932] A.C. 161 (H.L.) [Bell v. Lever Brothers], The background and procedural history of this cas
impressively told in Catharine MacMillan, "How Temptation Led to Mistake: An Explanation o
v. Lever Brothers Ltd." (2003) 119 L.Q.R. 625.
Ibid, at 218, per Lord Atkin.
Ibid, at 220-224.
[1950] 1 K B. 671 (EWCA Civ) [Solle v. Butcher],
As Professor Cartwright has explained in John Cartwright, Mistake, Misrepresentation and Non
Disclosure (London: Sweet & Maxwell, 2007) at para. 15.28, Denning L.J. actually said that apart
from cases where there is no matching offer and acceptance common mistake only ever makes a con
tract voidable. This is clearly impossible to reconcile with Bell v. Lever Brothers. Lord Denning repeated
this view obiter in Leaf v. International Galleries [ 1950] 2 K.B. 86 (EWCA Civ) at 89; Frederick E. Rose

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
462 Singapore Journal of Legal Studies [2009]

contracts were voidable and gave a party adversely a

to seek rescission. The mistake had to be a fundame
about the facts or the parties' respective rights. The
be at fault and it must be unconscientious for the oth
gained.23 The Court ordered the rescission of a t
under the common mistake that rent control legisla
requirement that the landlord offer the tenant a ne
the landlord could have demanded under the rent c
notice on the tenant at the time of entering into th
be doubted whether the party seeking relief did not
turning out the way they did. He was a surveyor h
position as the tenant to know whether the rent con
Although 'mistake in equity' at least offers some re
common misassumptions that undermine contractu
applied wisely and cannot in any event be squared w
this context any attempt to differentiate mistakes p
formed from mistakes merely vitiating the contra
fate as the Emperor's suit of clothes. It is also im
additional doctrine existed that the House of Lords would make no mention of it in

(London) Ltd v. William H. Pim Jnr & Co. Ltd. [1953] 2 Q.B. 450 (EWCA Civ) at 460; Oscar Chess
Ltd v. Williams [1957] 1 W.L.R. 370 (EWCA Civ) at 373-374.
Solle v. Butcher, supra note 21 at 690-93.
Time and space do not permit an examination of whether the court has any power to order rescission on
terms. If rescission is the act of the party any such power would be one to impose terms on the previous
act of the party. As Spence v. Crawford [1939] 3 All E.R. 271 (H.L.) demonstrates the court may be
required to make consequential orders upon rescission but this is something different from the order
made by the Court of Appeal in Solle v. Butcher. The latter was tantamount to making a new contract
for the parties and bears a close resemblance to the doctrine of partial rescission apparently applied by
the High Court of Australia in Vadasz v. Pioneer Concrete (SA) Pty (1995) 184 C.L.R. 102. Partial
rescission has not earned the approbation of the English courts as shown by TSB Bank Pic v. Camfield
[1995] 1 W.L.R. 430 (EWCA Civ) and De Molestina v. Ponton [2002] 1 All E.R. (Comm) 587 (Q.B.D.)
(per Colman J.). For a contrary argument see Jill Poole & Andrew Keyser, "Justifying Partial Rescission
in English Law" (2005) 121 L.Q.R. 273.
The same could be said of subsequent 'mistake in equity'cases. In Grist v. Bailey [ 1967] Ch. 532 a house
was sold under the common mistaken belief that a protected tenant still lived in it. The protected tenant
had died and rescission was ordered. But did not the vendor assume this risk? In Magee v. Pennine
Insurance Co Ltd [1969] 2 Q.B. 507 (EWCA Civ) a compromised insurance claim was rescinded
because of a common mistaken belief that the insured had not breached his obligation of uberrimae
fidei in obtaining the policy. Again the risk would appear to rest on the insurer here. In Laurence
v. Lexcourt Holdings Ltd [1978] 1 W.L.R. 1128 (Ch.) a business lease was rescinded because of a
common mistake that planning permission had been granted. Arguably the lessees should have made
enquiries and discovered the true position. Of all the cases here the dictum of Hoffmann L.J. (as he
then was) in William Sindall, supra note 9 at 1035 could be applied: "I should say that neither in Grist
v. Bailey [1967] Ch. 532 nor in Laurence v. Lexcourt Holdings Ltd [1978] 1 W.L.R. 1128 did the judges
who decided those cases at first instance advert to the question of contractual allocation of risk. I am not
sure that the decisions would have been the same if they had." In Associated Japanese Bank, supra note
5, the reliance on 'mistake in equity' in a case concerned with the guarantee of an equipment lessee's
obligations was misplaced even though the machines did not exist because the lessee's obligations still
existed. In Clarion Ltd v. National Provident Institution [2000] 1 W.L.R. 1888 (Ch.) the 'mistake in
equity' argument was dismissed because the party making it had simply made a bad bargain.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 463

Bell v. Lever Brothers?^ For these reasons the Court of App

was right to say it had to go.28 Nowadays in English Law t
against a common misassumption affecting a contract is that
void. It has already been pointed out that demonstrating a
sufficiently fundamental to reach this conclusion is extrem
Great Peace it may even have become more difficult. Lord
there had to be a common assumption as to the existence of a
"the non-existence of the state of affairs must render perf
impossible".29 The judgment draws a link with frustration
with supervening events which also must make further per
impossible.30
Decisions subsequent to Ihe Great Feace confirmed the demise ot mistake in
equity'.31 It is unnecessary to discuss them individually because in none of them
should the result have been different no matter what doctrine of common mistake was
applied. In Brennan v. Bolt Burdon32 and Astons Nightclub,33 cases concerned with
compromised civil and insurance claims respectively, Lord Phillips M.R.'s impos
sibility test was restated as an intelligible basis test for similar contexts. In Graves
v. Graves34 the reasoning of the Court of Appeal was somewhat muddled but the
tenancy agreement entered into was rightly voided as there was a clear condition
precedent that the tenant be entitled to housing benefit.35
The current doctrine of common mistake in the English law of contract is extremely
exacting. It requires proof that the entire basis of the parties' agreement has been
undermined. In the next section of this article it will be contended that the current
doctrine is unrealistic and unjust and should be liberalised to a modest degree.

As Professor Cartwright has pointed out in John Cartwright, "Solle v. Butcher and the Doctrine of
Mistake in Contract" (1987) 103 L.Q.R. 594 at 605 . .there is nothing to suggest that the courts at the
time of Bell v. Lever Brothers thought that equity would act over and above the common law, in order
to hold voidable a contract which the common law would hold valid."
Supra note 4.
Technically it could not do this as it should follow its previous decision in Solle v. Butcher, see Stephen
B. Midwinter, "The Great Peace and Precedent" (2003) 119 L.Q.R. 180; but nobody seems to doubt
that this has happened. For other comments on this case see John Cartwright, "Re-writing the Law on
Mistake" (2003) 11 R.L.R. 93; Christopher Hare, "Inequitable Mistake" (2003) 62 Cambridge L.J. 29;
Andrew Phang, "Controversy in common mistake" (2003) 67 Conv. 247; F.M.B. Reynolds, "Reconsider
the Contract Textbooks" (2003) 119 L.Q.R. 177.
The Great Peace, supra note 4 at 708-709.
One argument supporting the synthesis between common mistake and frustration is that as frustrating
events are future events and common mistakes involve matters of existing fact the latter are more easily
guarded against in the contract. It follows from this that the bar for relief should not be set higher for
frustration. Against that it might be argued that as a frustrated contract is part performed this raises
expectations that should not be lightly disturbed. Of course the mistake might be discovered after a
period of part performance but it still undermines the contract from the start.
See EIC Services Ltd v. Phipps [2005] 1 W.L.R. 1377 (EWCA Civ); Brennan v. Bolt Burdon [2005]
Q.B. 303 (EWCA Civ) [Brennan v. Bolt Burdon]; Kyle Bay Ltd (T/A Astons Nightclub) v. Underwriters
Subscribing Under Policy Number 019057/08/01 [2007] 1 C.L.C. 164 (EWCA Civ) [Astons Nightclub]',
Graves v. Graves [2007] 3 F.C.R. 26 (EWCA Civ) [Graves v. Graves],
Ibid.
Ibid.
Ibid.

See David Capper, "More Muddle on Mistake" [2008] L.M.C.L.Q. 264.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
 464 Singapore Journal of Legal Studies [2009]

VI. Evaluation—Defective Contracts in

Other Jurisdictions

We now come to the point where it is necessary to address the central question of t
article. Assuming that the parties have reached an agreement the first question w
be one of express or implied allocation of risk. As Steyn J. pointed out in Associat
Japanese Bank "[i]t is at this hurdle that many pleas of mistake will either fail o
prove to have been unnecessary".36 The next question will be whether the contra
has any subject matter and many pleas of common mistake will fail here for simil
reasons. Those that succeed will result in a void contract for the simple reason th
the 'contract' has no content; there is nothing to contract about. This leaves one ar
of common mistake that potentially presents some problems and where English La
has struggled to achieve a coherent solution. This is the common mistake wh
an identifiable offer and acceptance has occurred, the contract has subject matte
but some significant misassumption has been made and it is not possible to find an
express or implied allocation of risk to one or other party.
In these cases English Law has taken the high road. It says that these case
occur very infrequently and where they do this is down to bad contractual plannin
Therefore legal certainty is paramount and relief should not be afforded unless t
error totally undermines the contract. The high road is not irrational because caref
contractual planning can solve many of the potential problems in this area and an
greater willingness to grant relief might come at the expense of legal certainty. T
is because it is likely that this greater willingness would take the form of a judic
discretion to treat the contract as voidable. Experience of the 'mistake in equity'
doctrine was not happy but much of this was due to the impossible task of reconcil
this doctrine with mistake at common law. Had English law taken a Solle v. Butch
approach to common mistake at the time of Bell v. Lever Brothers and the court
had attached sufficient weight to allocation of risk in the application of this doctr
it is likely that the law on common mistake would be in a more coherent conditi
today than it is. It is now proposed to examine the approach of other common la
jurisdictions to the problem of common mistake. Based upon the approach tak
in these jurisdictions it will be argued that a better principle governing common
mistake would be one which recognises an agreement between the parties has not
been totally undermined but is defective in the sense that a serious mistake was m
in the making of the contract and that it would be unjust to hold the party mor
adversely affected by that mistake to the bargain.

A. Ireland

The decision of Costello J. in the High Court of Ireland in O'Neill v. Ryan (No. 3p1
offers a particularly clear picture of the common mistake doctrine this article supports.
First the judge analysed the facts surrounding the creation of the contract to see if
there had been a failure of offer and acceptance and then he proceeded to consider
whether the contract was void because it had no subject matter. He found nothing

36 Supra note 5 at 268.

37 [1999] 1 I.R. 166 (H.C.Ir.).

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 465

wrong with the contract on either of these grounds. Then

whether the contract could be set aside in equity under the d
and held that there had not been any fundamental misappre
facts or the parties' rights. What is significant about the j
made no reference to Bell v. Lever Brothers at all. He considered that a contract
could be void only if offer and acceptance failed to produce an agreement or if there
was nothing to contract about. Otherwise relief from the consequences of common
mistake was only possible where a party adversely affected by the mistake asked the
court to rescind the contract.38 In a short judgment the Supreme Court dismissed an
appeal, O'Flaherty J. commenting that Costello J.'s discussion of common mistake
made a significant contribution to Irish jurisprudence on this aspect of contract law.39

B. Australia

The law in Australia, in the context of Bell v. Lever Brothers mistakes, seems to be
accurately stated by Professors Carter and Harland as follows:

Therefore, not only is it clear that there is a jurisdiction in Australia to set aside a
contract on the ground of common mistake, but also Solle v. Butcher can be taken
as a vivid illustration of the jurisdiction. However, in order for the contract to be
liable to be set aside there must be circumstances which render it unconscionable
for the party who seeks to uphold the contract to have it enforced.40

This means that if a contract has been formed and there is no issue of failure of offer
and acceptance or no issue of a lack of substance the only escape route is to convince
the court that there has been such a common mistake that it would be unconscionable
for the other party to enforce the contract. Solle v. Butcher illustrates this jurisdiction
and is preferred to Bell v. Lever Brothers. Judicial support for this view can be found
in the common mistake decision of the High Court in Svanosio v. McNamara4] and
its unilateral mistake decision in Taylor v. Johnson,42 In Svanosio the High Court
unanimously refused to rescind a contract for the sale of a hotel that did not rest
fully on the land conveyed because there had been sufficient time between contract
and conveyance (four months) to investigate title. Both judgments, those of Dixon
C.J. and Fullagar J., and McTiernan, Williams, and Webb JJ. discussed potential
relief in terms of Solle v. Butcher and voidability rather than Bell v. Lever Brothers
and voidness. In Taylor v. Johnson the majority judgment of Mason A.C.J., Murphy
and Deane JJ., in the context of unilateral mistake, differentiated between failures
of offer and acceptance that prevented contract formation and other mistakes that
might allow an affected party to seek rescission. In doing so their Honours found
Solle v. Butcher helpful and by-passed Bell v. Lever Brothers. The recent decision
of the Queensland Court of Appeal in Australia Estates P/L v. Cairns City Council43

Ibid, at 184-185.
Ibid. at 196.

John W. Carter & David John Harland, Contract Law in Australia, 4th ed. (Sydney: Butterworths, 2002)
at para. 1231.
(1956) 96 C.L.R. 186 (H.C.A.) [,Svanosio].
(1983) 151 C.L.R. 422 (H.C.A.) [Taylor v. Johnson],
[2005] Q.C.A. 328.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
466 Singapore Journal of Legal Studies [2009]

may cause some doubt as to the state of the law i

the reasoning in The Great Peace was persuasive a
overruled. There was, however, no operative mist
value is limited. Solle v. Butcher has not been overruled in Australia because it was
only persuasive authority to begin with. The same applies to Bell v. Lever Brothers
and earlier pronouncements of the High Court to the effect that the former was
preferred to the latter were not (and could not be) traversed.

C. New Zealand

Since New Zealand has opted for a statutory solution to the problem discussed in
this article, specifically through the Contractual Mistakes Act 1977,44 its value as
a guide to the common law is limited. Section 6 of this Act gives the court a wide
discretion to grant relief against a common mistake.45 Prior to this Act Chilwell
J. of the High Court, in Waring v. SJ Brentnall Ltd,46 expressed his preference for
'voidable in equity' over 'void at common law'.

D. Singapore

A very important contribution to the whole area of mistake in contract law has been
made by the Singapore Court of Appeal in Chwee Kin Keong and Ors v. Digiland
mall.com Pte. Ltd,,47 a case of unilateral mistake. The respondents were a company
selling IT products. Their website displayed a HP laser printer at $3,854 but by a
mistake of an employee this was altered to $66. The appellants in concert purchased
a very substantial number of these printers with a view to resale at considerable per
sonal profit. The respondents refused to deliver the goods and the appellants sued
for damages for breach of contract. The trial judge found and the Court of Appeal
upheld that the appellants all knew that the respondents had made a fundamental
mistake. Consequently there had been no consensus ad idem and no contract was
formed at common law. The Court of Appeal, accepting an argument advanced by
amicus curiae, further held that the contract would also have been voidable in equity
because the appellants had constructive knowledge of the respondents' mistake. The
Great Peace was acknowledged to have no application to unilateral mistake48 but
there were a few hints dropped to the effect that it might not find favour with the Court
in a case of common mistake. The Court approved Steyn J.'s statement in Associated

(N.Z.), 1977/54 [Contractual Mistakes Act 1977],

Relief may be granted where the mistake "resulted at the time of the contract—(i) In a substantially
unequal exchange of values; or (ii) In the conferment of a benefit, or in the imposition or inclusion of
an obligation, which was, in all the circumstances, a benefit or obligation substantially disproportionate
to the consideration therefor" (see s. 6(1 )(b)) and where the risk of the matter in question does not fall
upon the party seeking relief (see s. 6(1 )(c)).
[1975] 2 N.Z.L.R, 401 (Auckland S.C.).
[2005] 1 S.L.R. 502 (C.A.) [Digilandmall]. For discussion see YeoTiong Min, "Great Peace: A Distant
Disturbance" (2005) 121 L.Q.R. 393 and Lee Pey Woan, "Unilateral Mistake in Law and Equity—Solle
v. Butcher Reinstated" (2006) 22 J. Contract Law 81 (Lee Pey Woan).
Ibid, at para. 74 [per Chao Hick Tin J. A., delivering the judgment of the Court).

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 467

Japanese Bank49 that a narrow doctrine of mistake at comm

a wider doctrine of mistake in equity made sense,50 and gen
that equitable principles would not be inimical to certainty.5
approach, as Andrew Phang J. pointed out in Wellmix Orga
Ltd v. Lau Yu Man,52 is that the common law and equitable f
mistake are only truly different in their consequences. It m
preserving distinctive rules operating at common law and i
any event.53
Notwithstanding the fact that Digilandmall is about unila
its differentiation between mistake at common law and com
is untenable for the reasons explained in the previous paragr
the authority still provides some support for the thesis prese
thesis is that common mistake either prevents a contract f
creates a defective contract which the party more adversel
have rescinded. In relation to unilateral mistake Digilandma
dichotomy which is to be expected in a 'joined up' law of m
dichotomy is maintained in the Court of Appeal's recognition
of the other party's mistake prevents contract formation and
of that mistake could make the contract voidable. Differentia
tive knowledge is a difficult task as Digilandmall acknowled
examination of unilateral mistake would be going off on too
ever some mention should be made in this context of the recent decision of Aikens
J. in Statoil ASA v. Louis Dreyfus Energy Services LP,54 where the judge expressed
doubt whether a contract can be rescinded for unilateral mistake. Essentially Aikens
J. held that failure of offer and acceptance would prevent contract formation and
that rectification could be ordered of a written contract which through unilateral
mistake did not conform to the parties' continuing common intention down to the
moment of committing their agreement to writing.55 Beyond that there would be
no relief and in particular there could not be any rescission of the contract on the
ground that the non-mistaken party unconscionably allowed the mistaken party to
enter into it labouring under that mistake. Aikens J. was not helped to avoid this
unfortunate conclusion by counsel for the mistaken party citing common mistake

Supra note 5 at 267-268.

Digilandmall, supra note 47 at para. 55.
Ibid, at para. 81.
[2006] 2 S.L.R. 117 (H.C.) at para. 70. The judge would, if necessary, have held that a consent unless
order failed either for cross purposes mistake or because the plaintiff knew that the defendant was
labouring under a mistake as to the nature of the order. It was unnecessary to decide this because
Andrew Phang J. held that only an ordinary unless order had been made.
Andrew Burrows, "We Do This At Common Law But That in Equity" (2002) 22 Oxford J. Legal Stud. 1.
[2008] 2 Lloyd's Rep. 685 (Q.B.D.) [Statoil],
On whether rectification for unilateral mistake changes the written contract into an agreement the parties
did not make or into one they did see Andrew Burrows, "Construction and Rectification", in Andrew
Burrows and Edwin Peel, eds., Contract Terms (Oxford: Oxford University Press, 2007) 77 (taking
the former position): and David McLauchlan, "The 'Drastic' Remedy of Rectification for Unilateral
Mistake" (2008) 124 L.Q.R. 608 (favouring the latter). The present author takes the same position
as Professor McLauchlan here and considers that it follows from this that the non-mistaken party's
knowledge of the other's mistake would have to be actual.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
468 Singapore Journal of Legal Studies [2009]

cases in support of this jurisdiction. Had Taylor v.

the New Towns v. Cooper (GB) Ltd.51 been cited
different. In the Statoil case the defendants' witnesses admitted their awareness of

the claimants' mistake in calculating their demurrage claim and that it was their
intention to allow the claimants to walk into the trap. The mistake did not relate to
a term of the contract so relief could not be granted on the footing that offer and
acceptance had failed. In the end Aikens J. did hnd in the claimants' favour because
of a subsequent variation to the original settlement but had this not been possible
substantial injustice would have been served. It is respectfully submitted that the
common law should and does recognise a power for the court to rescind a contract for
unilateral mistake about its commercial consequences and effect, not just its terms,
where the non-mistaken party unconscionably allows the other to enter this contract
subject to the mistake.58 The kind of knowledge required to satisfy unconscionabil
ity in this context must be left to another occasion. But to return to the point of
this digression its purpose is to support the Singapore Court of Appeal's view in
Digilandmall that there is jurisdiction to rescind a contract entered into under unilat
eral mistake and by extension this power should be recognised in common mistake
cases too.

E. Canada

Prior to The Great Peace it is striking how much support Solle v. Butcher rec
in common mistake cases. In Ivanochko v. Sych59 a contract for the sale of a
and furniture provided for monthly payments of principal less than the int
the purchase price would never have been paid. Woods J.A. for the cour
that there had been no failure of offer and acceptance, no mistake as to the
matter of the contract, and no express or implied term prevented the contract
coming into operation. The contract could be rescinded under the principle o
v. Butcher. In Hyrsky v. Smith60 land sold turned out to be only slightly in
of 50% of the land described in the contract. In allowing the purchaser to re
Lieff J. followed Grist v. Bailey,6[ one of the 'mistake in equity' cases in the
v. Butcher line. His Honour distinguished Svanosio62 above, which had also fa

Supra note 42.

[1995] 2 All E R. 929 (EWCA Civ) at 946.
Professor Cartwright is of the view that there is no role for rescission in this area because any equitable
intervention would be confined to mistakes about terms and these prevent contract formation. See
John Cartwright, Misrepresentation Mistake and Non-Disclosure (London: Sweet & Maxwell, 2007)
at para. 13.31. However, it is not clear that this follows from the authorities cited. In a subsequent
passage (paras. 15.10-15.12) Professor Cartwright cites Smith v. Hughes (, 1871) L.R. 6 Q.B. 597 for the
proposition that misrepresentation offers the only remedy here but there remains the argument that the
law has moved on since that decision. There is support for the position taken in this article in the very
comprehensive analysis of rescission in Dominic O'Sullivan, Steven Elliott & Rafal Zakrzewski, The
Law of Rescission (New York: Oxford University Press, 2008) at paras. 7.07-7.26.
(1967) 60 D.L.R. (2d) 474 (Saskatchewan C.A.).
(1969) 5 D.L.R. (3d) 385 (Ontario H.C.).
See supra note 25.
See supra note 41 and accompanying text.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 469

Solle v. Butcher, on the ground that the misdescription in ti

substantialibus. In Manwood v. Charter Credit Corporation6
of land mistakenly conveyed the vacant lot next door to the
that the parties thought they were conveying. Rescission was
about occupation rent and allowance for improvements. It mi
contract was void but the guiding authorities discussed in t
Solle v. Butcher, Grist v. Bailey, and Hyrsky v. Smith.64 To
v. Fortin (No 2f5 was a case about the restitution of a paym
a void agreement. Andrews J. held that as the repudiated a
payment made to escape from it was liable to be set aside in
v. Pennine Insurance Co. Ltd 66
The Great Peace was considered by the Ontario Court of A
Ltd v. B. Gottardo Construction Ltd 61 Goudge J.A., deliver
the court, drew upon the article by Professor McCamus cit
Canadian jurisdictions had adopted both the common law and
of common mistake. The facts of the case clearly supported
doctrine so it was unnecessary to decide whether any alt
required. But Goudge J.A. had this to say in passing:

Great Peace appears not yet to have been adopted in Cana

there is good reason for not doing so. The loss of the flexib
unjust results in widely diverse circumstances that would
the equitable doctrine of common mistake would, I think,

It is also worth saying that the attention paid by the court to t

of risk as a reason for denying relief supports the view th
flexibility in this area need not come at an unacceptable pric

F. The United States of America

The jurisdictions which offer the most coherent approach dif

English approach are probably to be found in the United St
the Restatement 2d of Contracts10 provides:

Where a mistake of both parties at the time a contract w

assumption on which the contract was made has a materi
exchange of performances, the contract is voidable by the a
unless he bears the risk of the mistake...

(1971) 20 D.L.R. (3d) 563 (Nova Scotia S.C.).

Ibid, at 569-571.

(1978) 88 D.L.R. (3d) 232 (British Columbia S.C.). See also Vandekerhove v. Litchfield (1993) 103
D.L.R. (4th) 739 (British Columbia S.C.).
See supra note 25.
(2007) 285 D.L.R. (4th) 568 (Ontario C.A.) [Miller Paving].
See supra note 2.
See Miller Paving, supra note 67 at para. 26.
(1981) [Restatement 2d of Contracts],

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
 470 Singapore Journal of Legal Studies [2009]

The commentary to this section explains further.

The mere fact that those parties are mistaken wi

does not, of itself, afford a reason for avoidance o
affected party. Relief is only appropriate in situa
parties has such a material effect on the agreed e
upset the very basis for the contract... It is not en
prove that he would not have made the contract h
He must show that the resulting imbalance in th
that he can not fairly be required to carry it out.

Two elements of the Restatement's provision on

similar to English doctrine—the need for the mistak
underlying the contract and the assumption of ris
more liberal than the English formulations, especia
exchange imbalance where the essential difference
lies. Where all three elements are present the contr
clear that as this discretionary doctrine is applied
highly influential in reaching the conclusion that t
tion. Were any discretionary doctrine introduced t
are that judges would sometimes reason backwards
involves such hardship for the adversely affected pa
is found too. But open acknowledgement that ex
reasoned from is surely better than trying to fit arg
It is worth studying three famous American cases
principle of section 152 is based. These cases may n
in line with section 152 but they offer useful fact p
compatibly with section 152. In Wood v. Boynton11
defendant's shop, sold him a small stone for $ 1.
he said that it might be. Afterwards it was discove
diamond worth $700. The plaintiff's action for resc
because the defendant had been guilty of no fra
either party as to the identity of the stone. This c
fairly contemporaneous decision of the Supreme
v. Walker.12 A heifer, Rose 2d of Aberlone, was so
barren when she was actually with calf at the time
was dismissed because the parties had made a fundam
of the subject matter of the contract, a breeder as o
questionable decision has since been repudiated b
on the basis that it rested on an unsustainable disti
the attributes of contractual subject matter.73 But
would have been that the seller assumed the risk that his cow was barren. The seller
in Wood v. Boynton would not have assumed the risk that the stone she sold was
precious and so this decision quite properly supports section 152 of the Restatement.

71 (1885) 25 N.W. 42 (Wisconsin S.C.) [Wood v. Boynton],

12 (1887) 33 N.W. 919 (Michigan S.C.).
73
See Lenawee County Board of Health v. Messerly (1982) 331 N.W.2d 203 (Michigan S.C.).

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 471

In Smith v. Zimbalist14 the defendant, an internationally kn

to inspect the plaintiff's collection of rare violins. The pla
and a collector of rare violins but not a dealer. The defendan
which he identified as a Stradivarius and a Guarnerius resp
$8,000 was agreed and a 'bill of sale' drawn up which descr
Stradivarius and a Guarnerius but did not expressly warrant
out that they were imitations worth no more than $300 togeth
for the balance of the price after the defendant had made
was dismissed. In the California Court of Appeals Houser J
sale as a contractual warranty that the violins were what the
also made clear that were this not so the defendant would not be bound because of
the common mistake.75

G. Conclusions from Other Jurisdictions

Commonwealth jurisdictions and Ireland clearly prefer Solle v. Butcher to Bell

v. Lever Brothers. The United States, where the Bell v. Lever Brothers writ does
not run at all, has no time for the House of Lords' decision here. More will be said
about this issue in the conclusion to this article where the arguments in favour of an
approach treating mistakes of this nature as making the contract voidable are dis
cussed. At this stage it is probably sufficient to say that courts in other common law
jurisdictions found Bell v. Lever Brothers too inflexible to be workable in practice.
Under Bell v. Lever Brothers, for a contract to be void it must be so comprehensively
undermined that it resembles an empty shell with no content at all. There are too few
common mistake scenarios where this is a realistic picture of the contract between
the parties that this doctrine offers no significant protection to contracting parties in
these situations. As courts in other jurisdictions can see in these situations a con
tract is formed but something serious has gone wrong in the making of the contract.
Adherence to the Bell v. Lever Brothers approach effectively denies any real prospect
of relief in these situations. Courts in other jurisdictions are unwilling to take such
a purist approach.

VII. Conclusion

Before setting out the reasons why the English law of contract should a
discretionary approach to 'defective' contracts it is useful to summarise
reached so far. Where offer and acceptance fails a contract will not be fo
offer and acceptance produces an agreement with no subject matter the c
to be void. Whether this is different from 'no contract is formed' appears
very much. Sometimes the existence of a contract depends on the satisf
express or implied condition precedent.76 Before the conclusion of 'no

(1935) 38 P.2d 170 (California C.A.).

Further discussion of Commonwealth and American perspectives on common mistake c
David Capper, "Reconfiguring Mistake in Contract Formation", in Michael Bryan, ed., P
Theory and Practice (London: Routledge-Cavendish, 2007) 119.
See Graves v. Graves supra note 31.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
472 Singapore Journal of Legal Studies [2009]

subject matter' is reached the preliminary quest

addressed. If the risk of the events occurring is a
there is contractual subject matter. The same prel
when it comes to examining those cases where off
there is contractual subject matter but some fund
of fact has occurred which undermines the contr
Where there is no allocation of risk here the cruc
certainty and fairness come into conflict. The Eng
to certainty because it insists that relief can only b
fundamentally undermined that it is effectively an
take the line that sometimes the court should retai
common misassumptions occur. It is now proposed
why the other jurisdictions have the better argume
It should be made clear that what is proposed he
when English law had the two doctrines of 'mista
equity'. Those doctrines could not operate in tandem
as to their consequences. What is advocated here
the American Restatement 2d of Contracts. This r
misassumption of fact, very harsh contractual im
to either party before discretion to render the con
this be better than the current English approach?
that in giving primacy to certainty English law pla
careful contractual planning by the parties and the
protecting parties against disappointed expectation
be expected to prepare their contracts carefully an
role for a judicial discretion to deal with the cons
commercial contract between two parties who can
terms right. Allocation of risk will supply the an
cases. However to take the position that if a party did
term there can never be relief is to take a very hig
rules and is also unfair to contracting parties in s
The exchange imbalance in that case was monumen
insufficient sophistication to be fairly regarded as a
more valuable than she imagined. Provided the cou
and the allocation of risk question it is not likely
would inflict great damage on certainty. On the co
road for those cases where it should have primacy
in cases where justice is the primary consideration
Two other reasons may be stated why adoption of
be better than the current English line. First, if a
is substantially performed the consequences are dra
who have acquired rights by virtue of the contract
this, however, because it seems not to affect comm
most often in the context of unilateral mistake as

77 If the risk is allocated to the defendant the claimant's remed

78 See supra note 71 and accompanying text.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms
Sing. J.L.S. Common Mistake in Contract Law 473

party.79 The other reason is, as appears from the discussio

dictions do not find the current English principle attracti
jurisdictions England is very much on its own in adhering
New Zealand altered its common law of contract the statut
Contractual Mistakes Act 1977, opted for discretion. Both th
Contract Law (PECL)m and Article 3 of the UNIDROIT Prin
Commercial Contracts treat common mistake as making th
The Great Peace itself Lord Phillips M.R. based the Court o
Solle v. Butcher mainly on its incompatibility with Bell v.
sibly appears from the brief mention of the Law Reform (F
194382 towards the end of the judgment83 a more discretio
appealed to the judges if only they had felt able to adopt i
if English law is to follow the path of other jurisdictions it
the Frustrated Contracts Act to get it there.

On this see Shogun Finance Ltd. v. Hudson [2004] 1 A.C. 919 (H.L.).
See Ole Lando & Hugh Beale, eds., Principles of European Contract La
International, 2002) Parts I and II.
See Chandler, Devenney & Poole supra note 4 at 55-56.
1943 (U.K.), 6 & 7 Geo. VI, c. 40 [Frustrated Contracts Act],
The Great Peace, supra note 4 at para. 161.

This content downloaded from

158.143.233.108 on Thu, 11 Aug 2022 13:42:11 UTC
All use subject to https://about.jstor.org/terms