Entering a Contract by mistake.
There are many ways to enter into a contract and mistake is one of them. A mistake is a legitimate reason why a contract should be cancelled or as stated in legalese be void ab initio of the mistake is considered a vitiating factor. Of course you can understand that if that was the case every so often contracts would be cancelled on the basis of mistake for a minor reason just so someone can evade his responsibilities under a contract or escape a bad bargain. This would entirely uproot the purposes of contract law to serve as a pillar of certainty in commercial transactions. Also a mistake in that sense would run counter to the principles of making a contract which since why would one party have a contract cancelled if he was not mistaken ? who would compensate him if he made expenses relying on the other party’s mistake and whatever would happen to the contractual element if intention to create legal relationship? Why would he have to suffer the bane of the other’s mistake?
Well the common law an ever evolving organism and always finding the solution to its self – made queries has struck a fair balance in a situation where mistake has taken place before the formation of a contract.
- concerned a mistake of fact, not a mistake of law, but nevertheless constitutes the starting point for any analysis as to when a contract may be set aside on grounds of common mistake.[20] Five elements must be satisfied:[21]
(1) There must be a common assumption as to the existence of a state of affairs.
(2) There must be no warranty by either party that that state of affairs exists.
(3) The non-existence of the state of affairs must not be attributable to the fault of either party.
(4) The non-existence of the state of affairs must render performance of the contract impossible.
(5) The state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual venture is to be possible.
However a mistake may be come in the form of a unilateral mistake but this is not a classic type of mistake and much more of a misnomer as in essence it is a misrepresentation which was caused by the other party’s taking advantage of something which would not have been a misrepresentation had there being no double meaning regarding the description of the subject matter and he knew the other party was mistaken to so it would fall short of misrepresentation but was morally not,
