CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00299.x |
| Date | 01 May 1955 |
| Author | W. D. Goodman |
| Published date | 01 May 1955 |
CORRESPONDENCE
TIIE
EDITOR,
THE
MOI)ERN
LAW
REVIEW.
Dear Sir
:
May
I
be permitted
a
brief comment on Mr.
J.
F.
Wilson’s scholarly
article in the November,
1954,
issue of this
Review
entitled “Identity in
Contract and the Pothier Fallacy.” Despite the author’s persuasiveness, even
if one were to admit, for the sake of argument, that
Mr.
Wilson has read the
cases more carefully than have his many learned predecessors, it could,
I
think, be maintained that, by adhering too slavishly to what the judges have
said, rather than regarding what they have actually decided,
Mr.
Wilson has
produced
a
rule of impeccable verbal clarity, but of uncertain content. At
p.
517
of the article
Mr.
Wilson asserts that, “mistake can be established if
, ,
.
A can prove to the satisfaction of the court that he did not intend to
contract with
B,
and that
B
was aware of the fact. Conversely
a
plea of
mistake will fail where the mistake
is
as to attribute and not identity.
If
a
person intends to deal with an identifiable party it is irrelevant that he would
not have been willing to do
so
if he had been aware of the other’s reputation
or bank balance.” A brief footnote reference at this point, reading,
‘‘Or
aware of his name, for this too is only an attribute,
as
pointed out by
Dr. Glanville Williams in
23
Can.B.R.
271,”
is
Mr.
Wilson’s only indication
that he has considered Dr. Williams’ thoughtful analysis of this perennially
fascinating problem.
The basic difficulty is, of course, the meaning of the words, “he did not
intend to contract with
B.”
Unless one adopts
a
wholly objective view of
the basis of contract and denies any significance whatever to consensual
elements, there can be no contract between
A
and
B
if A does not intend
to
deal with
B
and
B
is aware of that fact. A’s intention not to deal with
B
is not, however,
as
Mr.
Wilson assumes, simply
a
question of fact; it is,
rather,
a
mixed question of fact and law. Where
B
is fraudulently mis-
representing himself in some material respect, it is equally true to say that
A
intends to contract with
B
(the person
B
claims to be) and that A does not
intend to contract with
B
(the person
B
actually is).
As
Dr. Williams has
demonstrated, if we were able to explore A’s mind, we should find that A
actually thinks he is contracting with, and intends to contract with,
a
person
who has some attributes belonging to
B
and some that
do
not. The state-
ment,
‘‘
A does not intend to contract with
B
”
must, therefore, be given some
special legal meaning,
or
it will have no meaning at all. Since we must
accept, as
a
correct statement of the law, the proposition that
a
mere mistake
as
to
B’s
attributes does not prevent the formation of a contract, mistake as
to identity must be defined in some manner that sets it
off
sharply from mere
mistake
as
to attributes; this the article fails to do.
Dr. Williams, on the other hand, uses modern semantic theory to show that,
fundamentally, no distinction can be made between identity
(or
essence) and
attribute. A mistake as to identity, in order to be defined
at
all, must be
defined as
a
special case of mistake as to attributes. He therefore defines
as a mistake as to identity any material confusion by
A,
to
B’s
knowledge,
of
B’s
actual attributes with those of some other identifiable person, C, of
whose existence A has independent knowledge. Dr. Williams draws an
admittedly arbitrary line between confusion of the attributes of two specific,
identifiable persons and merely believing
B
has attributes which he does not
possess, but which are not those of any other specific, identifiable person.
To
be sure, this rule cannot reconcile all the cases, but then no one can feel
268
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