Group 3

Presentation
Common and Mutual Mistake

Group Members
1. Joy Kiminja
2. Laura Mary Opondo
3. Anastacia Nduku Mutua
4. Raynor Maxine William
5. Arnold Koech
6. Sarah Chemutai
7. Jamila Sambuli
8. Ibrahim Adan Gedow
9. Cindy W. Salim
10. Martin Karimi

Mistak
e
A mistake is an erroneous belief of contracting that certain facts are

true (at the point the contract is being made)

Mistake can be mistake of law or mistake of fact
Mistake of law not void

Mistake of fact- void

>Cooper vs. Phibb
There are various types of mistake which include:
A) Common Mistake
B) Mutual Mistake
C) Unilateral Mistake

1. Common Mistake
Common mistake exists where both parties to the contract make the

same mistake
Blakeley v. Muller
(i)Common assumption as to the existence of a state of affairs
(ii) No warranty by either party that the state of affairs exist
(iii) Non-existence of state of affairs must not be attributed to the

fault of either party

(iv) Non existence of the state of affairs must render performance of
the contract impossible
(v) The state of affairs may be the existence, or a vital attribute of the
consideration to be provided or circumstances which must subsist if

performance of the contractual adventure is to be possible .

Categories of Mistakes
>There are various main categories:
1. Res Extincta Mistake as to Subject matter

2. Res Sua Mistake as to Title

3. Mistake as to Quality

Res Extincta
>It applies when both parties enter a contract

with a belief that the subject matter exists

when it infact doesnt exist. The contract will
be held to be void for mistake
Scott vs. Coulson
Couturier vs Hastie

Res Sua
This is where a party contracts to buy

something which infact belongs to him.

This will generally render the contract void.
Cooper vs. Phibbs

Mistake as to Quality
Mistake as to quality will render a contract

void where the mistake is as to the existence

of some quality which renders the subject
matter of the contract essentially different to
what it was believed to be.
Bell vs. Lever bros (1932)
Leaf vs. International Galleries
Mc Rae vs. Commonwealth Disposals
commission

Remedies
>Refuse specific performance Ground of

common mistake
>Rescission of any contractual document
between the parties
Solle vs. Butcher courts have discretionary
jurisdiction to grant such relief where the
circumstances seem just
Note:
Wher contract is valid at common law, there is
no jurisdiction to set it aside in equity.

2.Mutual Mistake
Where the parties are at cross purpose that is;

where the parties misunderstand each others

intentions.
In order to use the defense of mistake, a party
must argue that:
(a)There was a mistake
(b)The mistake must be substantive
(c)The mistake was mutual

Objective Test Application

Raffles vs. Wichelhause
Wood vs. Scarth
Scriven Bros & co. vs. Hindley & co.

Remedies
1. Specific Performance
Tamplin vs. James
2. Rectification
River Properties Ltd. (1975)