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

• Use the material in the answer to Question 4 to answer this question,
  but tailor your argument to respond to the issue raised, i.e. that it may
  not be possible to have one single, comprehensive doctrine that suits
  all. In that case the law generally leaves people with their bargains,
  unless the subject matter no longer exists.

Question 6

This is a theoretical question concerning unilateral mistake over identity.

Like the other questions, do introduce the idea of mistake possibly vitiating

the agreement, but do not spend too long on other types of mistake.

• Remember the requirements for unilateral mistake to be operative:
  where only one party is working under a false assumption and the other
  is aware of this (and may have deliberately planned the situation).


• Explain that mistake over quality will generally leave the contract intact
  
  
  • Smith v Hughes, Scriven v Hindley, Hartog v Colin and Shields.
  
  
  
  


• Explain that mistake over identity inter absentes (not in each other’s
  presence) may render the contract void – Cundy v Lindsay. Do you
  consider this to be a fair outcome? Is there a fair alternative?


• Develop the idea that mistake over identity inter praesentes (in each other’s
  presence) may be seen as one of creditworthiness and will often leave the
  contract intact – Phillips v Brooks, Ingram v Little, Lewis v Averay.


• Consider whether there is in reality any difference between identity and
  creditworthiness. What factors may the courts have taken into account
  in deciding each of these three cases?


• What should the law be in this area in future?

Question 7

This is an alternative theoretical question on common mistake.

• Use the material from Question 4 and tailor your arguments to address
  the question.


• You may wish to consider the following cases – McRae v
  Commonwealth Disposals Commission, Sheik v Oschner, Amalgamated
  Investment and Property Co Ltd v John Walker and Sons Ltd.

Chapter 13: Illegality

Question 1

• Identify illegality as an undesirable element of a potential contract, and
  therefore a vitiating factor.

316 Contract law

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