Mistake in the Law of Theft

Abstract

A person who receives property under an apparent contract of sale can be guilty of theft of what he receives if the contract is void, for mistake or otherwise. It seems, since the decision of the House of Lords in Lawrence, that a person who obtains a voidable title (title under a voidable contract) can be similarly guilty (assuming, as always, that the other essentials of theft are present). I argue else where that a person who obtains a valid title to property generally does not by doing so make a dishonest appropriation (even though he may be morally dishonest), and should not be guilty of theft. The object of this article is to consider the way in which these principles apply to transfers made under mistake.In Lawrence the defendant's title to the money was voidable for fraud, which induces a degree of mistake by the transferor; but other sources of mistake are possible. The transferor may make a spontaneous mistake, or a mistake resulting from the transferee's innocent misrepresentation, without fraud.Three legal results can follow from a mistake in transferring property, according to circumstances.(1) The mistake may avoid the transaction, preventing title from passing. The transferee can be guilty of theft of the property on ordinary principles, that is to say by applying the definition in section 1 (1) of the Theft Act 1968.(2) The mistake may make the transaction voidable, so that a voidable title passes. Precisely when the transferee commits theft is a complex question, which will be postponed for the time being.