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Author(s):  
Andrews Neil

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’.





contract and sought to set aside the compensation packages, alleging fraud and mistake. The allegation of fraud was rejected by the jury, mainly on the basis of a crucial finding of fact that Bell and Snelling had forgotten about their earlier breaches of duty at the time they entered into the compensation contracts with Lever Bros. Two claims were advanced on the basis of mistake. First, it was argued that Lever Bros had made a unilateral mistake as to the terms of the contract, but this was rejected on the ground that Bell and Snelling had no duty to disclose their breaches of contract. Accordingly, the House of Lords was left to decide the case on the basis of the issue of common mistake. In the event, the House of Lords decided by a majority of three to two that the mistake related only to a quality of the service contract and that Lever Bros had therefore got what they had contracted for. Because of the factual complexity of the case, and some of the less believable conclusions reached by the jury, the judgments can be a little difficult to follow. In particular, it should be appreciated that although one of the majority, Lord Blanesburgh, also decided the case partly on the basis that Lever Bros had failed to properly amend their pleadings so as to admit a claim of common mistake. Also some of the judgments refer to a mutual mistake rather than a common mistake, but the case is concerned with the issue of a mistake which is shared by or common to both parties to the contract: Bell v Lever Bros Ltd [1932] AC 161, HL, p 217

1995 ◽  
pp. 306-313


1995 ◽  
pp. 314-314






1941 ◽  
Vol 7 (3) ◽  
pp. 361-378
Author(s):  
H. W. R. Wade

The boundary between the fields of mistake and impossibility in contract seems never yet to have been critically surveyed. But such a survey is badly needed, for it is plain that at the moment the law of mistake is in no less a state of confusion than is the law of impossibility or ‘frustration’. The outstanding case of recent years, Bell v. Lever Bros., Ltd. (1931), met with such universal and (if it may humbly be said) unmerited hostility from publicists in all quarters that this alone calls for an inquiry into the difficulties of the subject. There, has been a disturbing tendency among text-writers, led by Pollock, to profess an inability to understand the ratio deddendi of the case, to try to limit it for the future to its exact facts, and to refuse to recognize in it any legal principle.



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