A contract is likely in fairness to be set apart if the parties were under a general misapprehension moreover as to evidence or as to their relative and personal right, provided that the misunderstanding was original and that the party looking for way to set it aside was not himself at blunder. 1 Contract law allows a party from existing themselves from their negotiation if the contract is contaminated with a mistake on the part of one or both parties, as to an essential or major element of the contract. When both parties are misguided on a fundamental and basic element of the contract, the contract is void from the start if the error is of such consequence that it is an artificial yet major hypothesis of the contract. In theory, mistake occurs when one or other of the parties articulates that’s misinterpret of the condition or there’s an error made. Based on the case Lewis V Averay, it does categorise as unilateral mistakes. Unilateral mistake simply defined as affords no source for avoiding a contract, but a agreement that contains a typographical mistake may be accurate. 2 Such cases regularly engage mistakes as to the identity of the parties to the agreement, while popular cases concern fraud, it should not be thought that this is the barely way unilateral mistake operates. Mistake as to identity as one of the types of unilateral mistakes it occurs when one party makes a contract with a second party, believing him to be a third party. In a typical situation of this kind, the contract will either be void for mistake, or voidable for fraud. 3 The law makes a distinction between contracts where the parties are inter absentes and where the parties are inter praesentes. The principle of this essay is to elucidate why the Lord Denning took the view of these two cases, Phillip v Brooks(1919) 2 KB 243, and Ingram v Little 1QB 31 as could not be reconciled to the case Lewis V Averay. Besides, also to stumble on how the argument between these two cases was determined by the conclusion made in Lewis v Averay.
There are two comparable cases to Lewis v Averay, which are the Phillips v Brooks (1919) 2KB 243, and Ingram v Little 1QB 31. In Phillips v Brooks (1919) 2 KB 243 a scoundrel called North went to the plaintiff’s jeweller’s shop and pick some pearls and an
1 A Gibson and D Fraser, Business Law (5th ed,2010)
2 J W Carter and D J Harland, Contract Law in Australia (2nd ed,1991)
3C. C. Turpin,’ Mistake of Identity’ The Cambridge Law Journal (1972)30(1) [19-20] < http://www.jstor.org/stable/4505514.html> at21 March 2011.
emerald green ring, Then he wrote a cheque, as saying that he’s Sir George Bullough. The plaintiff knew of Sir George Bullough by reputation and on checking the address North gave in a directory and found it that it is match with Sir George Bullough’s true address. He then asked North whether he would like to take the articles with him. North replied that it would be more sensible to have the cheque cleared first, but that if the plaintiff did not mind, he would like to take the ring, as it was his wife’s birthday the subsequent day. North left the shop with the ring and hocks it with the defendants. When the cheque was tainted, the plaintiffs traced the ring to the defendants and take legal action for its return or its rate and damages for its imprisonment. 4 The action then unsuccessful, and the good title had conceded to the pawnbrokers and the jeweller could not recuperate. There were only the jeweller’s own unproven facts to support his argument that he had the anticipated to deal only with Sir George Bullough and the trial judge found that his purpose had been to deal with the person physically present in his shop. His major deliberation was not the actual identity of his customer but the creditworthiness, a simple characteristic. 5 Besides, he was trading the ring in a face to face condition. As a result, the contract was not...