Catharine MacMillan, MISTAKES IN CONTRACT LAW Oxford: Hart Publishing (www.hartpub.co.uk), 2010. xxv + 322 pp. ISBN 9781841135076. £50.
| Pages | 318-319 |
| DOI | 10.3366/elr.2011.0040 |
| Published date | 01 May 2011 |
| Date | 01 May 2011 |
The doctrine of mistake continues to perplex, frustrate and fascinate contract lawyers in equal measure. When, in
MacMillan begins the story of mistake in Ancient Rome with enough contextual information to be accessible to readers without any grounding in Roman law. The tale is continued through the Glossators, Neo-Scholastics and finally the Natural lawyers. Chapter 2 concentrates on the role played by legal philosophers. Chapter 3 then shows the practical side of mistake through the workings of Equity. This aspect of Equity has been largely overlooked before now. Equitable relief was premised on the grounds that conscience would not allow an advantage obtained by a mistake to be retained. MacMillan makes the crucial point that mistake was better developed in Equity than at Common Law because the parol evidence rules were more relaxed. The theme of legal procedure is continued into Chapter 4. This is not the first time that a legal historian has drawn attention to the role of procedural change in the rise of the so called classical model of contract but it is the first attempt to explore this hypothesis in such detail using a specific example. The changes in legal procedure in the nineteenth century hardly set the pulse racing but, nevertheless, “set the necessary conditions for the development of a substantive doctrine of mistake” (95). Chapters 5 and 6 return to the influence of legal literature which emerged in the early nineteenth century and helped to shape the substantive contours of mistake. Some of these writers like Pothier, Pollock, Anson and Benjamin are very well known, others, like Macpherson, an Anglo-Indian disciple of Pothier, less so. The great value of this discussion...
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