Mistakes in Contract Law

It is a matter of some difficulty for the English lawyer to predict the effect of a misapprehension upon the formation of a contract. The common law doctrine of mistake is a confused one, with contradictory theoretical underpinnings and seemingly irreconcilable cases. This book explains the common law doctrine through an examination of the historical development of the doctrine in English law. Beginning with an overview of contractual mistakes in Roman law, the book examines how theories of mistake were received at various points into English contract law from Roman and civil law sources. These transplants, made for pragmatic rather than principled reasons, combined in an uneasy manner with the pre-existing English contract law. The book also examines the substantive changes brought about in contractual mistake by the Judicature Act 1873 and the fusion of law and equity. Through its historical examination of mistake in contract law, the book provides not only insights into the nature of innovation and continuity within the common law but also the fate of legal transplants.

Autorentext

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

Inhalt

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