Identity In Contract and The Pothier Fallacy
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00272.x |
| Author | J. F. Wilson |
| Published date | 01 November 1954 |
| Date | 01 November 1954 |
IDENTITY IN CONTRACT AND
THE
POTHIER
FALLACY
A
FURTHER
paper on the effect of mistake as to identity on the
formation
of
contract would appear
superfluous
were it not for the
fact that previous surveys of the subject have revealed numerous
anomalies which have never been adequately explained. These
anomalies appear
to
have been created artificially by
a
p-iori
reasoning, and the present contention is that the majority of them
could be removed by adopting a different approach to the definition
of mistake. The object of this paper is to formulate such a new
definition based on the authority of decided cases, and to reassess
the value of the much-criticised test of Pothier.
Previous attempts to rationalise the cases on this topic have
equated mistake
as
to identity with
a
positive intention to make
a
contract with a person other than the one with whom the contract
at issue apparently has been concluded. Thus Mr. Tylor has argued
that an apparent contract with
B
is void, not because
A
did not
intend to deal with
B,
but because he intended to deal with
C,
a third
identifiable party. Similarly
Dr.
Cheshire and Mr. Fifoot state that
"
An agreement apparently concluded between
A
and
B
is a nullity
on the ground of mistaken identity,
if
it
is
proved:
(i)
that
A
did not intend to contract with
R
but with
C;
and (ii) that this
fact was known, either actually
or
inferentially, to
B."
Objections to the accepted test
With all deference to the learned writers, it is submitted that
this approach to the problem is wrong. First,
it
confuses a method
of
proving mistake with the fact of mistake itself. Mistake does
not lie in proof of an intention to deal with
C,
but rather in the
absence of an intention to deal with
B,
i.e.,
lack of the consent
requisite to create the contractual tie. The introduction of the
third identifiable person is merely useful as a method of proving
the fact of mistake
(Le.,
no intention to deal with
B)
and must
not be regarded as the basis of mistake, for it is wrong to regard
a
method of proving a fact as equivalent to the fact itself.
Secondly, it imposes artificial limits to the doctrine of mistake,
with the result that half the decided cases on the subject have to
be rejected. Thirdly, it results in some curious anomalies. Thus
if
A
consistently refuses to deal with
B,
but
B
finally obtains the
1
11
M.L.R.
257
at
p.
260.
2
Cheshire
and
Fifoot,
Law
of
Contract,
3rd
ed.,
at
p.
197.
See
also
Dr.
Goodliart
57
L.Q.R.
228
at
pp.
239,
241-2.
515
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