Mistakes in Contract Law

Catharine MacMillan is a Professor of Law and Legal History at the University of Reading.

MacMillan has produced a stimulating and, at times refreshing account of mistake [which] will be of interest to any modern lawyers and law students curious to know what caused all the confusion in the first place.

• 1. Introduction 2. Contractual Mistake in Roman Law: From Justinian to the Natural Lawyers The Law of the Romans Roman Contract Law Roman Contract Law and Mistake Mistakes as to the Identity of a Contracting party: Error in persona Mistakes as to the Price to be Paid: Error in pretio Mistakes as to the Subject Matter of the Contract Medieval Roman Law 3. Contractual Mistake in English Law: Mistake in Equity before 1875 The Jurisdiction and Procedures of Chancery Reasons for the Intervention of Equity An Unconscientious Advantage Obtained by Mistake Agreement did not Conform to Parties' Intentions Instances Short of Fraud Protection of a Weaker Party The Limits of Equitable Intervention Forms of Equitable Relief for Mistake Rectification Specific Performance Rescission Conclusions 4. The Lack of Contractual Mistake at Common Law and the Nineteenth-century Transformation of Procedure Pleading Equitable Defences Evidence and the Pre-trial Discovery of Facts Pre-trial Discovery Witnesses Matters of Law rather than Fact Conclusions 5. Pothier and the Development of Mistake in English Contract Law Pothier and the Traité des Obligations Pothier and English Contract Law Early Contract Treatise Writers Colebrooke and Contract Law Macpherson and the Indian Contract Act 1872 Leake: The First Scientific Treatise Writer of Contract Law Judah Benjamin—The Living Transplant Conclusions 6. Von Savigny and the Development of Mistake in English Contract Law Von Savigny and German Legal Development Von Savigny and Contract Von Savigny and Mistake Sir Frederick Pollock Pollock's Principles of Contract Pollock as Will Theorist Pollock and Mistake The Changes in Pollock's Principles Sir William Anson and the Principles of the English Law of Contract Anson and Mistake Anson Modifies his Treatment of Mistake Conclusions 7. The Creation of Contractual Mistake in Nineteenth-century Common Law An Absence of Subject Matter: Couturier v Hastie (1856) Mistake which Prevents Agreement—Raffles v Wichelhaus (1864) Mistake as to a Quality of the Subject Matter—Kennedy v The Panama, New Zealand, and Australian Royal Mail Company (Limited) (1867) Unilateral Mistake rarely renders a Contract Void—Smith v Hughes (1871) Conclusions 8. Mistake of Identity An Absence of Mistake of Identity in English Law Identity Frauds: Criminal Law and the Law of Obligations Hardman v Booth: A Turning Point Cundy v Lindsay: The Beginning of Mistake of Identity The Treatise Writers and the Development of Mistake of Identity New Legislation and a Changed Judicial Approach Conclusions 9. Mistake after Fusion The Judicature Act 1873 Equitable Mistake in the Chancery Division of the High Court The Impact of Procedural Unity upon Substantive Law Reform and Perform The Growing Necessity for the Mistake to be Bilateral The Increasing Rigidity of Equitable Relief Substantive Fusion of Mistake A Reduced Ambit for Mistake in Equity Common Law Mistake in the High Court The Importance of Bell v Lever Brothers The Court of Appeal The House of Lords The Importance of Solle v Butcher Conclusions 10. Summary and Conclusions Summary Conclusions Common Law Legal Development Transplants Contractual Mistake in Modern law