By Catharine MacMillan
ISBN-10: 1841135070
ISBN-13: 9781841135076
It's a subject of a few hassle for the English legal professional to foretell the impression of a misapprehension upon the formation of a freelance. the typical legislations doctrine of mistake is a harassed one, with contradictory theoretical underpinnings and probably irreconcilable instances. This ebook explains the typical legislations doctrine via an exam of the historic improvement of the doctrine in English legislation. starting with an outline of contractual error in Roman legislations, the ebook examines how theories of mistake have been bought at quite a few issues into English agreement legislation from Roman and civil legislation resources. those transplants, made for pragmatic instead of principled purposes, mixed in an uneasy demeanour with the pre-existing English agreement legislations. The publication additionally examines the significant alterations caused in contractual mistake by way of the Judicature Act 1873 and the fusion of legislation and fairness. via its ancient exam of mistake in agreement legislation, the booklet presents not just insights into the character of innovation and continuity in the universal legislation but additionally the destiny of felony transplants.
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Additional resources for Mistakes in Contract Law
Sample text
This second form can be further subdivided into those instances in which the mistake of one party is known to the other. The Romans recognised both forms of mistake within their categorisation of types of mistake and found that either would invalidate a contract. 30 A party labouring under a mistake could not be held to his agreement by the party who was aware of and had acquiesced in his mistake. 32 27 Alan Watson has argued that the invention of consensual contracts, of which the contract for sale (emptio vendito) was perhaps the earliest, evolved to remedy the shortcomings inherent within the taking of stipulations.
32 Buckland (n 21) 287. This is an error in negotio. Buckland gives an example of a situation where one party believes he has given the thing over as a sale, while the other believes he has received it as a gift. In such a case, there is no consent to either form of transaction and there is no contract. 33 A mistake of law would not invalidate a contract. 34 The error had to be reasonable and it had to be made in good faith. 35 The Romans encountered practical difficulties in applying this doctrine.
The process was not improved by inherent weaknesses in the borrowed theories of the civilians or by the fact that these theories were stripped from legal systems premised upon different rules and objectives than the common law. The system that the treatise writers borrowed, primarily from Pothier and von Savigny, was based on a theory that contracts consisted of a metaphysical union of the wills of the parties. Will could be disrupted or prevented by a variety of factors for Pothier, and these included mistake; for von Savigny a mistake could disrupt the manifestation of the will and render doubtful the juridical act.