mistakes in contract law

mistakes in contract law


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Mistakes in Contract Law-Catharine MacMillan 2010

s book is a biography of an idea. It addresses the question of how English contract law came to contain the doctrine of mistake that it does. This is a matter of not only antiquarian interest but also current concern. I hope that I have addressed the question in such a way as to not only provide some insight into the development of the modern law of contract but also to provide a basis upon which others can undertake a reform of the law in this area. How to explain mistakes in contract law? I have argued that the English doctrine of contractual mistake is itself a mistake. The doctrine arose as a result of the efforts of the scientific treatise writers of the late-nineteenth century who borrowed civilian inspired forms of mistake. They blended these theories of mistake with those cases in which courts of equity had provided relief where a mistake had occurred. As the common law slowly moved towards an unwitting acceptance of sorts of the theories of mistake proposed by the treatise writers, little concern was given as to how this new doctrine would fit within the existing structure of the common law of contract. Further mistakes were made at this point in the formation of the law. When mistake was given recognition by the House of Lords in Bell v Lever Brothers, it was thought of as forms of mistake which either negatived or nullified consent. The area has been one which has presented conceptual and practical problems ever since; yet another mistake. For all of these reasons, the doctrine of contractual mistake is best thought of as a series of ‘mistakes in contract law’.

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