GENERAL THEORY OF MISTAKE IN THE FORMATION OF CONTRACT

Publication Date01 Jul 1948
DOIhttp://doi.org/10.1111/j.1468-2230.1948.tb00089.x
AuthorT. H. Tylor
THE
MODERN
LAW
REVIEW
Volume
11
July
1948
No.
3
GENERAL THEORY OF MISTAKE
IN
THE
FORMATION OF CONTRACT
I.
XNTRODU~ON
BOTII
the object and. the scope of this article are strictly limited.
Its
object is to restate, in the light of the leading English authorities,
the principles governing operative mistake and to clarify their
application for the benefit of students. Its scope is limited
to
mistake in the formation of contract, in
so
far as its effect is to
prevent any contract from ever coming into existence. The justifi-
cation for adding further to the voluminous literature
on
this
vexed subject is that students are perplexed by its refined distinc-
tions, by the amount of controversy to which it has given rise, by
divergencies in terminology, and by a singular failure to extract
from the cpses clear basic principles, applicable to all circumstances.
The student has been further confused by a cleavage between those
applying subjective tests (seeking evidence of what the parties
really intended) and those applying objective tests-seekhg what
reasonable men would understand as intended from the words
or
conduct of the parties. The correct view would appear that
of
a
middle school of thought, recognising both kinds of test
as
relevant,
but failing to define with precision their respective spheres
of
operation.
I
must apologise to the many learned writers
on
this intricate
subject if this restatement does but scant justice to their wedth
of erudition and controversial argument, and trust thar they will
deem the interests of the harassed student a suftlcient excw.
The phenomena of contract have their parallel in other branches
of our law. Students are familiar with the analysis of crime into
an
'
actus reus
'
and
a
'
mens rea
'
;
or
of, possession into
'
corpus
'
and
'
animus
'.
This combination of act and intention is reflected
in contract by the physical acts,
i.e.,
'
dealing
',
and by the consent
or
assent of each party
to
the same proposition.
This
'
dealing
'
is further annlysed, for the sake of convenience,'
into an offer and an acceptance, and
to
these the objective test is
applicable. Students are familiar with
'
reasonable notice
'
of the
terms of an offer,
e.g.,
in the
'
ticket ca8es
1
That oNer and acce tance are but the mechiner
of
a
reernent
ie
seen
from
2
SCU
'
Acccplencc
of
oNcr with conditions annexed by reterence'
by
Sir
F.
The
Satanila
'
ClarRe
v.
Earl
of
Dunrawen,
[l897fA.C.
f9.
Pollock,
60
L.Q.n.
29.
VOL
11 257
17

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