Mistake as a Vitiating Factor in English Contract Law

Abstract

This article examines mistake as a vitiating factor in English contract law. After examining the five categories of mistake, namely, non est factum, ‘common’ mistake, mistake as to identity, mistake as to terms, and ‘mutual’ mistake, the Article identifies a universal rationale: proof of an absence of consent from the complainant, which is rendered operative by proof of an additional factor sufficient to overcome the objective principle. With this observation, and in reference to the Unidroit and European Draft Codes, the Article suggests the re-categorisation of the law of mistake that shapes the future development of law.Part of a collection entitled 'Contract Law and Civil Justice Special Issues In Memory of Kurt Lipstein', edited by M Andenas, N Andrews and M Tamaruya. This paper and related papers have been accepted for publication and will appear in one of two special series in European Business Law Review (2011)(papers on contract) and (2012) (papers on procedure and civil justice).