• Created by: Fongyl
  • Created on: 26-09-18 06:22


Mistake is a vitiating factor of a contract. Once a mistake is established in a contract, the court will render the contract void. As if the contract never existed. It is necessary to identify a mistake from a misrepresentation. A misrepresentation will render a contract voidable while a mistake will make the contract void.

The law of contact recognizes four areas of mistake. Which are common mistake, mutual mistake, unilateral mistake and mistake as to identity.

Common mistake occurs when both parties made the same mistake. Common mistake concerns three issues, common mistake as to existence of the subject matter, common mistake as to title and common mistake as to quality.

Common mistake as to existence of subject matter will apply where both parties enter a contract with the belief that the subject matter exists when in fact it does not. This mistake can be seen stated and fixed to be void in both cases of Scott v Coulson and Couturier v               Hastie. In the case of Scott v Coulson, the contract of life insurance was for a person without knowing that he was in fact dead. The court held that the contract was void for res extincta.

And in the case of Couturier v Hastie, the contract was made at the time when the subject matter was not in existence. Thus was held to be void. The two cases were held to be void in order to ensure certainty.

Common mistake as to title occurs when a party contracts to buy something which in fact actually belongs to him. This will generally render the contract void. The case of Cooper v Phibbs, both parties which were making the contract of purchasing a property was not in the knowledge of knowing that the party buying the property was the beneficiary of the property. Thus the contract was rendered to be void due to res sua.

Common mistake as to quality may not be sufficient to qualify as a fundamental mistake to a contract, this rule can be seen in the case of Leaf v International Galleries. In the case stated, the claimant bought a painting from the defendant. The claimant then found out that the quality of the painting was not the same as he expected. The court held that the mistake was not fundamental as there was no mistake as to the essential subject matter. However, in the case of Nicholson and Venn v Smith…


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