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PREFACE
This book is a biography of an idea. It addresses the question of how English contract law came to contain the doctrine of mistake that it does. This is a matter of
not only antiquarian interest but also current concern. I hope that I have
addressed the question in such a way as to not only provide some insight into the
development of the modern law of contract but also to provide a basis upon which
others can undertake a reform of the law in this area.
How to explain mistakes in contract law? I have argued that the English doctrine
of contractual mistake is itself a mistake. The doctrine arose as a result of the
efforts of the scientific treatise writers of the late-nineteenth century who borrowed civilian inspired forms of mistake. They blended these theories of mistake
with those cases in which courts of equity had provided relief where a mistake had
occurred. As the common law slowly moved towards an unwitting acceptance of
sorts of the theories of mistake proposed by the treatise writers, little concern was
given as to how this new doctrine would fit within the existing structure of the
common law of contract. Further mistakes were made at this point in the formation of the law. When mistake was given recognition by the House of Lords in Bell
v Lever Brothers, it was thought of as forms of mistake which either negatived or
nullified consent. The area has been one which has presented conceptual and practical problems ever since; yet another mistake. For all of these reasons, the doctrine
of contractual mistake is best thought of as a series of ‘mistakes in contract law’.
I have incurred many debts of gratitude in preparing this work and I am
delighted to be able to thank the people and institutions who have helped me. I
first discussed how best to approach the problem of mistake in contract law with
my friend, the late John Yelland. His comments and insights led me to think of a
project with an historical approach; I think he would have found the final result
interesting. Many other colleagues gave me helpful comments and support at various points in the preparation of this work: Victor Tunkel, Stephen Waddams, Ian
Yeats, Margot Horspool and Wayne Morrison. JoAnne Sweeny has helped me to
tidy up certain of the chapters. Jo Murkens provided me not only with invaluable
translations into English of various parts of Savigny’s System of Modern Roman
Law but also with his insights into Savigny’s scholarship. Andrew Lewis kindly
read a draft chapter on Roman law and gently corrected more than one error. I am
particularly grateful to Michael Lobban who has not only listened to more than
one tentative hypothesis but has also read several draft chapters and commented
thoroughly upon them. My tutorial students have rendered invaluable assistance
in commenting on various arguments. I have also benefitted from the comments
given by audience members following the presentation of mistake papers at the
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Current Legal Issues Session (University College London, 2002), the Society of
Legal Scholars Conference (Oxford, 2003), the Second Biennial Conference on the
Law of Obligations (Melbourne, 2004), and the Institute for Advanced Legal
Studies (London, 2007). All remaining mistakes in this work are my responsibility
alone.
A number of institutions and libraries have greatly assisted me with searches. I
would like to thank Unilever for allowing me access to their historical archives and
for the assistance of their staff, the staff at the Parliamentary Archives for their help
and also the staff at the Beckenham Public Library and the archives at Kingston
upon Thames. I am particularly grateful to the librarians at the Institute for
Advanced Legal Studies library for their help and their unfailing assistance in
retrieving volume after volume for me.
Last, but by no means least, I must thank my family for their patience, understanding and encouragement as this work was prepared. My family has, so to
speak, had to live with the mistakes of others for some time. My initial suspicion
that this research had formed a part of family life when my daughter Margaret
wrote a school assignment on the topic ‘what I did on my holidays’ by explaining
that she had spent them looking for Mr Bell was confirmed when my son Henry,
having been asked to prepare a project on his local neighbourhood, explained
(having spent a week in Beckenham researching war damage) where the bombs
had landed in our neighbourhood during the war and the ensuing shortage of
housing.
I dedicate this book to my mother and in memory of my father. Without their
optimism and support none of this would have been possible.
Catharine MacMillan
London
December 2009
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CONTENTS
Preface
Table of Cases
Table of Statutes
vii
xiii
xxv
1. Introduction
1
2. Contractual Mistake in Roman Law: From Justinian to the Natural Lawyers
The Law of the Romans
Roman Contract Law
Roman Contract Law and Mistake
Mistakes as to the Identity of a Contracting party: Error in persona
Mistakes as to the Price to be Paid: Error in pretio
Mistakes as to the Subject Matter of the Contract
Medieval Roman Law
10
10
12
14
17
17
18
26
3. Contractual Mistake in English Law: Mistake in Equity before 1875
The Jurisdiction and Procedures of Chancery
Reasons for the Intervention of Equity
An Unconscientious Advantage Obtained by Mistake
Agreement did not Conform to Parties’ Intentions
Instances Short of Fraud
Protection of a Weaker Party
The Limits of Equitable Intervention
Forms of Equitable Relief for Mistake
Rectification
Specific Performance
Rescission
Conclusions
38
39
44
45
45
47
47
48
53
54
56
61
68
4. The Lack of Contractual Mistake at Common Law and the
Nineteenth-century Transformation of Procedure
Pleading
Equitable Defences
Evidence and the Pre-trial Discovery of Facts
Pre-trial Discovery
Witnesses
Matters of Law rather than Fact
Conclusions
69
71
82
86
86
89
91
94
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5. Pothier and the Development of Mistake in English Contract Law
Pothier and the Traité des Obligations
Pothier and English Contract Law
Early Contract Treatise Writers
Colebrooke and Contract Law
Macpherson and the Indian Contract Act 1872
Leake: The First Scientific Treatise Writer of Contract Law
Judah Benjamin—The Living Transplant
Conclusions
96
96
104
106
107
108
112
123
133
6. Von Savigny and the Development of Mistake in English Contract Law
Von Savigny and German Legal Development
Von Savigny and Contract
Von Savigny and Mistake
Sir Frederick Pollock
Pollock’s Principles of Contract
Pollock as Will Theorist
Pollock and Mistake
The Changes in Pollock’s Principles
Sir William Anson and the Principles of the English Law of Contract
Anson and Mistake
Anson Modifies his Treatment of Mistake
Conclusions
136
136
140
141
143
145
148
150
162
169
171
174
178
7. The Creation of Contractual Mistake in Nineteenth-century Common Law
An Absence of Subject Matter: Couturier v Hastie (1856)
Mistake which Prevents Agreement—Raffles v Wichelhaus (1864)
Mistake as to a Quality of the Subject Matter—Kennedy v The Panama,
New Zealand, and Australian Royal Mail Company (Limited) (1867)
Unilateral Mistake rarely renders a Contract Void—Smith v Hughes (1871)
Conclusions
181
181
186
8. Mistake of Identity
An Absence of Mistake of Identity in English Law
Identity Frauds: Criminal Law and the Law of Obligations
Hardman v Booth: A Turning Point
Cundy v Lindsay: The Beginning of Mistake of Identity
The Treatise Writers and the Development of Mistake of Identity
New Legislation and a Changed Judicial Approach
Conclusions
216
216
218
224
230
236
238
242
x
190
207
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9. Mistake after Fusion
The Judicature Act 1873
Equitable Mistake in the Chancery Division of the High Court
The Impact of Procedural Unity upon Substantive Law
Reform and Perform
The Growing Necessity for the Mistake to be Bilateral
The Increasing Rigidity of Equitable Relief
Substantive Fusion of Mistake
A Reduced Ambit for Mistake in Equity
Common Law Mistake in the High Court
The Importance of Bell v Lever Brothers
The Court of Appeal
The House of Lords
The Importance of Solle v Butcher
Conclusions
245
245
246
247
248
250
252
254
256
257
259
265
270
278
290
10. Summary and Conclusions
Summary
Conclusions
Common Law Legal Development
Transplants
Contractual Mistake in Modern law
292
292
299
299
304
311
Index
319
xi