CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

• Then consider the issue of mistake over identity and whether this might
  make the contract void.


• Refer to cases such as Phillips v Brooks, Ingram v Little, Lewis v Avery
  and Shogun v Hudson.


• Apply the principles to the characters and decide if Nazir can take any
  action.

Question 4

This question concerns the same material as Question 2 (above), i.e.

common mistake, but in essay style.

• Introduce mistake as a vitiating factor, but focus clearly on common
  mistake.


• Remember that in this kind of mistake both parties are labouring under
  the same false assumption, so there is agreement, but over the ‘wrong’
  subject matter. It is only where the court finds this so fundamentally
  different from that agreed that the original subject matter does not
  really exist that the contract is void.


• Explain that where there is genuine mistake over existence of the
  subject matter the court will generally declare the contract void –
  Couturier v Hastie, Galloway v Galloway, Scott v Coulson. Compare
  McRae v Commonwealth Disposals Commission, which appeared to be
  an issue of mistake but was held to be a breach of warranty, bringing
  about a more appropriate remedy.


• Examine mistake over title, which may invoke an equitable remedy –
  Cooper v Phibbs.


• Examine in some detail mistake over the quality of the subject matter
  (i.e. the value of the bargain). This will leave the contract intact if the
  mistake is not ‘fundamental’ – Bell v Lever Bros, Leaf v International
  Galleries, Associated Japanese Bank Ltd v Credit du Nord, William
  Sindall v Cambridgeshire County Council.


• Consider exactly what is ‘fundamental’. Should there be a remedy
  more easily available? Should people not be held to what they bought
  (see the issue raised in Question 5)?


• Look back at Question 2 for ideas of the kind of issues to discuss – can
  the law deal effectively with those who have lost and those who have
  gained? Is it possible to share the burden of loss in a fair way between
  two innocent parties?

Question 5

The question again concerns common mistake, and covers the same

theoretical ground as Question 4 (above).

Answers guide 315

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