128 Chapter 4Misrepresentation, mistake, duress and illegality
Whether or not a mistake as to the identity of the other contracting party will make a
contract void depends upon several factors. First, it is necessary that the parties did not
meet face to face when making the contract. If the parties did meet face to face then the
contract will not be void for mistake. In LewisvAveray, which we considered earlier in this
chapter, the claimant argued that the contract was void for mistake. (If this argument had
been successful the claimant would have got the car back.) The Court of Appeal rejected this
argument. If the parties meet face to face then the contract will not be void for mistake.
If the parties did not meet face to face then it is possible that the contract will be void
for mistake. However, this will be the case only where the innocent contracting party was
mistaken as to the identityof the rogue. If the innocent contracting party was mistaken only
as to the rogue’s attributesthen the contract will not be void for mistake. (Attributes are
concerned with a person’s qualities or distinguishing features. For example, one of the attri-
butes of Andrew Flintoff, the cricketer, is that he is a very good fast bowler. This is not the
same as his identity. There are other very good fast bowlers.) The following two cases show
the difference between being mistaken as to identity and being mistaken as to attributes.Cundy vLindsay (1878) (House of Lords)A rogue ordered a very large quantity of handkerchiefs from the claimants. The rogue pre-
tended to be a reputable firm with whom the claimants had previously dealt. This firm was
called Blenkiron & Co of 123 Wood Street, London. The rogue, who was called Blenkarn,
disguised his signature to look like Blenkiron & Co, giving his address as 37 Wood Street,
where he had hired a room. The trick worked and the claimants sent the handkerchiefs to
Blenkiron & Co at 37 Wood Street. The rogue sold 250 dozen of these handkerchiefs to the
defendant who bought them in good faith. The claimants sued the defendant to get these
handkerchiefs back.
HeldThe contract was void for mistake because the claimants were mistaken as to
the identity of the person with whom they made the contract. Therefore, ownership of the
handkerchiefs never moved away from the claimants.
CommentThe contract was of course voidable for fraudulent misrepresentation, but the
claimants had not avoided it in time. As regards avoiding for misrepresentation, they would
therefore have been defeated by s. 23 of the Sale of Goods Act 1979, as explained above.Kings Norton Metal Co Ltd vEdridge, Merrett & Co Ltd (1897)
(Court of Appeal)A rogue ordered goods from the claimants, who were metal manufacturers. The rogue was
called Wallis, but he made the letter appear to come from Hallam & Co, Sheffield. No such
company ever existed. However, the claimants sent the goods because the rogue’s letter
was printed on very impressive notepaper. The rogue sold the goods on to the defendants,
who bought them in good faith. The claimants sued the defendants to get the goods back.
HeldThe contract was not void for mistake and so the claimants were not entitled to the
goods. The claimants were not mistaken about the identity of the person they were dealing
with. (Unlike the claimants in CundyvLindsay, the claimants in this case had no prior