12. Mistake

Abstract

This chapter deals with mistake. First it looks at mistake in relation to the agreement, exploring the relevance of the identity and attributes distinction and its application in case law including the important decision of the House of Lords in Shogun Finance Ltd v Hudson. The equitable jurisdiction of the courts permits a more flexible approach and this too is considered. Second, the chapter explores mistake relating to questions of performability, often referred to as common mistake. In a situation where both parties share the same misapprehension about an underlying fact, this could constitute a mistake as to the existence, or a mistake as to the quality, of the subject matter. The significance of the leading case of Great Peace Shipping Ltd and its influence on the scope of common mistake is dealt with. The possibility of a document being signed by mistake is also addressed.