8. Mistake

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter considers the area of ‘mistake’. The law distinguishes between several types of mistake. Some mistakes (‘agreement mistakes’) prevent formation of an agreement. These mistakes are mutual mistakes (where the parties are at cross purposes) and unilateral mistakes (where one party is mistaken and the other knows or ought to know this, e.g. unilateral mistake as to identity). The chapter also looks at document mistakes and specifically rectification of a written document to reflect accurately what the parties in fact agreed, and the plea of non est factum (‘this is not my deed’). Finally, a contract having no contractual allocation of risk and made under the same mistaken assumption may be void for ‘common mistake’ if the mistake is so fundamental that it ‘nullifies’ consent. This is known as ‘initial impossibility’ because the impossibility already exists when the parties agree to the contract. This chapter deals with common mistake and initial impossibility, contractual risk allocation, and the theoretical basis for the doctrine of common mistake. It discusses categories of fundamental common mistake, including res extincta, and assesses the legal effects of mistakes as to quality made by both parties. The chapter concludes by considering the relationship between common mistake and frustration.

Part IV Vitiation, 12 Mistake

Occasionally English law will treat an apparent contract as void because both parties have suffered a misapprehension concerning the nature of the subject-matter. A shared fundamental mistake renders the supposed agreement a nullity. But this is possible only in extreme circumstances. English law adopts a narrow approach to mistake. In the leading case, Bell v Lever Bros (1932), Lords Atkin and Thankerton, members of the three-judge majority, considered that the test for shared mistake is whether an error has occurred which involves an essential difference between reality and the parties’ shared mistaken assumption. Because of the narrow way in which this restrictive formulation has been applied, the doctrine of shared mistake occupies a minor place in practice. An attempt by Lord Denning in Solle v Butcher (1950) to create in Equity a parallel and more pliable doctrine of shared mistake was repudiated in 2002 by the Court of Appeal in ‘The Great Peace’. But a contract can be a nullity where there is no consensus because an offer has been made to an identified person whose identity has been adopted by an impostor (who communicates other than face-to-face with the offeror). But if the impostor and offeror meet face-to-face, a voidable contract is likely to be found. This branch of the doctrine of mistake is known as ‘error as to identity’ or ‘mistaken identity’.

From Compliance, to Acceptance, to Teaching: On Relocating Rule Consequentialism's Stipulations

Several recent formulations of Rule Consequentialism (RC) have broken with the consensus that RC should be formulated in terms of code acceptance, claiming instead that RC should focus on the consequences of codes' being taught. I begin this article with an examination of the standard case for acceptance formulations. In addition to depending on the mistaken assumption that compliance and acceptance formulations are the only options, the standard case claims advantages for acceptance formulations that, upon closer examination, favor teaching formulations. In the remainder of the article, I defend this new teaching-centered approach against some recent criticisms. I argue that preoccupation with the somewhat technical problem of identifying the best criterion for making choices under conditions of uncertainty has distracted rule consequentialists from paying more careful attention to the advantages and disadvantages that result from decisions concerning where they locate RC's stipulated assumptions within the theory.

The WHO—Destined to Fail?: Political Cooperation and the COVID-19 Pandemic

In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

Sellars, Price, and the Myth of the Given

Wilfrid Sellars's "Empiricism and the Philosophy of Mind" (EPM) begins with an argument against sense-datum epistemology. There is some question about the validity of this attack, stemming in part from the assumption that Sellars is concerned with epistemic foundationalism. This paper recontextualizes Sellars's argument in two ways: by showing how the argument of EPM relates to Sellars's 1940s work, which does not concern foundationalism at all; and by considering the view of H.H. Price, Sellars's teacher at Oxford and the only classical datum theorist to receive substantive comment in EPM. Timm Triplett has claimed that Sellars's discussion simply begs the question against Price, but this depends on the mistaken assumption that Sellars's concern is with foundationalism. On the contrary, Sellars's argument concerns the assumption that the innate capacity for sensory experience counts as "thinking in presence" in the way needed for empiricist accounts of content acquisition. Price's distinction between noticing universals and being aware of them encapsulates the tensions empiricists face here.

Excuse without Exculpation

Can moral ignorance excuse? This chapter argues that philosophical debate of this question has been based on a mistaken assumption: namely that excuses are all-or-nothing affairs; to have an excuse is to be blameless. The chapter argues that we should reject this assumption. Excuses are not binary but gradable: they can be weaker or stronger, mitigating blame to greater or lesser extent. This chapter explores the notions of strength of excuses, blame mitigation and the relationship between excuses and moral responsibility. These ideas open up some principled middle-ground between the two positions staked out in the literature. Moral ignorance may well excuse but it does not exculpate.

Do Human Rights Have a Secular, Individualistic & Anti-Islamic Bias?

There is a widely shared belief, both within and outside the Muslim world, that Islamic law cannot be reconciled with the modern human rights regime that developed out of the 1948 Universal Declaration of Human Rights (udhr). Many Muslims perceive that the purportedly individualistic, secular, and Western orientation of human rights is alien to Islamic values. Abdulaziz Sachedina and other scholars of Islam have argued that the underlying tenets of the udhr and its progeny are simply incompatible with Islamic law. In reality, the problem is not an underlying conflict between human rights and Islam, but the mistaken assumption that the modern nation-state is the proper institution for interpreting and enforcing Islamic law.

13. Non-agreement mistake

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract having no contractual allocation of risk and made under the same mistaken assumption may be void for ‘common mistake’ if the mistake is so fundamental that it ‘nullifies’ consent. This is known as ‘initial impossibility’ because the impossibility already exists when the parties agree to the contract. This chapter deals with common mistake and initial impossibility, contractual risk allocation and the theoretical basis for the doctrine of common mistake. It discusses categories of fundamental common mistake, including res extincta, and assesses the legal effects of mistakes as to quality made by both parties. The chapter concludes by considering the relationship between common mistake and frustration.

What the Humean Theory of Motivation Gets Wrong

I show that defenses of the Humean theory of motivation (HTM) often rely on a mistaken assumption. They assume that desires are necessary conditions for being motivated to act because desires (and other non-cognitive states) themselves have a special, essential, necessary feature, such as their world-to-mind direction of fit, that enables them to motivate. Call this the Desire-Necessity Claim. Beliefs (and other cognitive states) cannot have this feature, so they cannot motivate. Or so the story goes. I show that: (a) when pressed, a proponent of HTM encounters a series of prima facie counterexamples to this Claim; and (b) the set of claims that seem to naturally complement the Desire-Necessity Claim as well as provide successful responses to these counterexamples turn out to deny the truth of this same claim. As a result, the Humean implicitly grants that it is at least equally plausible, if not more plausible, to claim that desires are not able to motivate in virtue of what they necessarily possess. Instead, desires contingently possess features that enable them to motivate.

Four Ways to Another Religion’s Ultimate

The prospect of recognizing the ultimate is a matter of interpretation. As such, hermeneutics is used as a framework for describing the interactions of self, language, and the other (whether culturally other or ultimately other). Questioning whether religious ultimacy can be recognized across religious boundaries is based on a mistaken assumption that differences between religions are qualitatively different than differences within a religion. Hermeneutically speaking, intra-communal difference and inter-communal difference are of the same kind. If humans can negotiate the former, they can negotiate the latter. Recognizing ultimacy is an intersubjective act of phronēsis, or practical wisdom. As such, it cannot be explained in any detail apart from the concrete particulars of each encounter. Below is an account of recognizing the Ultimate, analyzed into four explanatory ways: its immediate quality (uncanniness), its vehicle (the classic), its cultural-linguistic mechanism (metaphorical appropriation), and its ontological implications (a signifying cosmos). Each way offers a different type of explanation as to how a person can recognize another religion’s ultimate. I begin with the most concrete: spontaneous feeling, and work my way to more speculative implications.