Mistake over documents
Generally parties are bound by written documents – L’Estrange v Graucob.
Where a written contract is genuinely not in accordance with a parties’
intentions, the following may apply:
- Non est factum (‘this is not my deed’) – Foster v Mackinnon, Lloyds
Bank v Waterhouse, Saunders v Anglia Building Society (also known as
Gallie v Lee). - Rectification (amending a written contract to reflect more accurately the
parties’ previous oral agreement) – Joscelyne v Nissen.
The relationship between mistake and frustration
Mistake occurs before or at the point of contract, but frustration occurs
during the lifetime of a contract – Sheik v Oschner, Property Co Ltd v John
Walker and Sons Ltd.
Questions
1 Faridah wishes to sell her valuable violin, so advertises it for sale. Germaine visits
Faridah, explaining that she would like to buy the violin, and they agree on a price.
Germaine produces a cheque book, but Faridah hesitates, saying that she would prefer
cash. Germaine then replies, ‘Look, you can see who I am’, and produces various items
of identity, bearing the same surname as a famous musician. Faridah is embarrassed and
agrees to take the cheque, handing over the violin to Germaine.
A few days later Faridah is contacted by her bank, who informs her that the cheque
from Germaine is worthless, and that Germaine cannot be traced. Faridah is upset at
this, but to her surprise a few days later to see ‘her’ violin for sale in the window of a
musical instrument supplier, Humbuskers. She tries to recover the violin from
Humbuskers, but they claim that they paid a good price for it from someone going
abroad, and would certainly not be prepared to just give it back to her.
Advise Faridah.
OCR 2001/2 specimen
2 Adrian enjoys visiting art galleries and has a small collection of quite valuable paintings.
He decides to buy a painting from the Artefactus gallery, which both he and the gallery
believe to be by the well known contemporary painter Brush.Adrian pays £5000 for the
painting and hangs it in his gallery.
He decides to refurbish the gallery and buys a collection of second-hand furniture
from a London street market, including some reproduction eighteenth-century chairs.
Two months later Adrian has the contents of the gallery valued for insurance purposes,
and discovers that the painting is only a copy of the original by Brush, and probably worth
no more than £15, but that one of the chairs is original and worth £3000.
Adrian seeks your advice.
198 Contract law