1 If mistake operates at all, it operates so as to negative or in some cases nullify consent: A Discourse. By Duru, Onyekachi Wisdom Ceazar (Email: firstname.lastname@example.org; Tel: +234-8037707496) Introduction The above question calls for a discourse of the law relating to mistake which affects the true consent of one or both of the contracting parties so that one or both of them may be asked to be released from contractual obgligations. More specifically, the question requires the provision of justification for the dictum of Lord Atkin in Bell v. Lever Brothers Ltd.,1 to the effect that “if mistake operates at all, it operates so as to negative or in some cases nullify consent”. This short essay submits that the above assertion is true as far as ‘mistake’ under the law of contract is concerned. Overview of Mistake at Law As a general rule, the mistake of a party does not affect the validity of a contract.2 In essence the parties are bound by the terms agreed between them and neither can escape his obligations under the contract by claiming that the agreement was not what was intended (That is to say he was mistaken. The cardinal principle is “Caveat Emptor” which simply means “let the buyer be aware”. 1 (1932) AC 161 at 217 2 See generally, E. Essien, General Principles of Nigerian Law (Uyo: TopLaw Publishment Ltd, 1995) at 136-199 2 This was clearly illustrated in the case of Tamplin v. James3 where the defendant had bid successfully at an auction sale for a public house believing that the property offered for sale included an adjourning field which had always been used by the publican. The sale particulars however clearly excluded the field. It was held that the defendant was bound by the contract. Thus, ‘mistake’ law has a more limited scope than mistake in ordinary usage. In other words, what may be regarded as mistake by the layman, will in most cases not be so regarded at law. Again, ‘mistake’ under the law of contract is not coterminus with a misjudgment or ‘an obvious misunderstanding’. A mistake in the popular sense alone has no legal significance. For a mistake to be operative (as a vitiating element of contract) it must be such a mistake that would operate to defeat the existence of the contract because, from the circumstances, it can be said that there was no consensus ad idem between the parties. In other words, the whole issue of a mistake in the law of contract turns on the question of reality of consent that is to say, whether there was a consensus ad idem. A good example of what amounts to mistake at law is the destruction of the subject matter of contract without the knowledge of the contracting parties prior to the conclusion of the contractual negotiations. Authority for this proposition is the dictum of Lord Atkin in BELL v. LEVER BROTHERS LTD (Supra) to the effect that: 3 (1879) 15 CH.D 215 3 …an agreement of A and B to purchase a specific article is void if in fact the article had perished before the date of sale. In this case, though the parties in fact were agreed about the subject-matter, yet a consent to transfer or take delivery of something not in existence is deemed useless; consent is nullified. In such a case, it is said that there is no consensus ad idem or meeting of the minds, since there was no consent by either of the contracting parties. This is the implication of the above assection and it is in the light of the foregoing that the proposition constituting the question is justified. Conclusion The foregoing is a brief theoretical attempts to bring to bare the legal nature of mistake under the law of contract. What remains to be added is that the effect of a legally valid mistake at common law is to make the contract void ab initio, that is, the contract is a total nullity conferring no rights and imposing no obligations. However, a person who has been adversely afected may still have a remedy at equity.
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