Common mistake.

Bell v Lever Brothers

Judgment: LORD ATKIN:
My Lords, the rules of law dealing with the effect of mistake on contract appear to be
established with reasonable clearness. If mistake operates at all it operates so as to negative or
in some cases to nullify consent. The parties may be mistaken in the identity of the contracting
parties, or in the existence of the subject-matter of the contract at the date of the contract, or in
the quality of the subject-matter of the contract. These mistakes may be by one party, or by
both, and the legal effect may depend upon the class of mistake above mentioned.
Mistake as to quality of the thing contracted for raises more difficult questions. In such a
case a mistake will not affect assent unless it is the mistake of both parties, and is as to
the existence of some quality which makes the thing without the quality essentially
different from the thing as it was believed to be. Of course it may appear that the parties
contracted that the article should possess the quality which one or other or both mistakenly
believed it to possess. But in such a case there is a contract and the inquiry is a different one,
being whether the contract as to quality amounts to a condition or a warranty, a different branch
of the law.
Smith v. Hughes 48, the well known case as to new and old oats...
The Court ordered a new trial. It is not quite clear whether they considered that if the
defendant's contention was correct, the parties were not ad idem or there was a
contractual condition that the oats sold were old oats. In either case the defendant would
succeed in defeating the claim.