If mistake operates at all, it operates so as to negative or in some cases nullify consent: A Discourse by ceazarwisdom



                 If mistake operates at all, it operates so as to
                  negative or in some cases nullify consent: A
                      Duru, Onyekachi Wisdom Ceazar
            (Email: onyekachiduru@gmail.com; Tel: +234-8037707496)


          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”.

    (1932) AC 161 at 217
    See generally, E. Essien, General Principles of Nigerian Law (Uyo: TopLaw Publishment Ltd, 1995) at

          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:

    (1879) 15 CH.D 215

          …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.


      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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