Mistakes in contract law Catharine MacMillan.

Format:

Book

Author/Creator:

MacMillan, Catharine, author.

Language:

English

Subjects (All):

Contracts--England.

Contracts.

Contracts--Wales.

Mistake (Law).

Mistake (Roman law).

Physical Description:

1 online resource (348 p.)

Edition:

1st ed.

Place of Publication:

Oxford Portland, Oregon Hart Publishing 2010.

Language Note:

English

Summary:

It is a matter of some difficulty for the English lawyer to predict the effect of a misapprehension upon the formation of a contract. The common law doctrine of mistake is a confused one, with contradictory theoretical underpinnings and seemingly irreconcilable cases. This book explains the common law doctrine through an examination of the historical development of the doctrine in English law. Beginning with an overview of contractual mistakes in Roman law, the book examines how theories of mistake were received at various points into English contract law from Roman and civil law sources. These transplants, made for pragmatic rather than principled reasons, combined in an uneasy manner with the pre-existing English contract law. The book also examines the substantive changes brought about in contractual mistake by the Judicature Act 1873 and the fusion of law and equity. Through its historical examination of mistake in contract law, the book provides not only insights into the nature of innovation and continuity within the common law but also the fate of legal transplants

Contents:

1. Introduction

2. Contractual Mistake in Roman Law: From Justinian to the Natural Lawyers

The Law of the Romans

Roman Contract Law

Roman Contract Law and Mistake

Mistakes as to the Identity of a Contracting party: Error in persona

Mistakes as to the Price to be Paid: Error in pretio

Mistakes as to the Subject Matter of the Contract

Medieval Roman Law

3. Contractual Mistake in English Law: Mistake in Equity before 1875

The Jurisdiction and Procedures of Chancery

Reasons for the Intervention of Equity

An Unconscientious Advantage Obtained by Mistake

Agreement did not Conform to Parties' Intentions

Instances Short of Fraud

Protection of a Weaker Party

The Limits of Equitable Intervention

Forms of Equitable Relief for Mistake

Rectification

Specific Performance

Rescission

Conclusions

4. The Lack of Contractual Mistake at Common Law and the Nineteenth-century Transformation of Procedure

Pleading

Equitable Defences

Evidence and the Pre-trial Discovery of Facts

Pre-trial Discovery

Witnesses

Matters of Law rather than Fact

5. Pothier and the Development of Mistake in English Contract Law

Pothier and the Traité des Obligations

Pothier and English Contract Law

Early Contract Treatise Writers

Colebrooke and Contract Law

Macpherson and the Indian Contract Act 1872

Leake: The First Scientific Treatise Writer of Contract Law

Judah Benjamin-The Living Transplant

6. Von Savigny and the Development of Mistake in English Contract Law

Von Savigny and German Legal Development

Von Savigny and Contract

Von Savigny and Mistake

Sir Frederick Pollock

Pollock's Principles of Contract

Pollock as Will Theorist

Pollock and Mistake

The Changes in Pollock's Principles

Sir William Anson and the Principles of the English Law of Contract

Anson and Mistake

Anson Modifies his Treatment of Mistake

7. The Creation of Contractual Mistake in Nineteenth-century Common Law

An Absence of Subject Matter: Couturier v Hastie (1856)

Mistake which Prevents Agreement-Raffles v Wichelhaus (1864)

Mistake as to a Quality of the Subject Matter-Kennedy v The Panama, New Zealand, and Australian Royal Mail Company (Limited) (1867)

Unilateral Mistake rarely renders a Contract Void-Smith v Hughes (1871)

8. Mistake of Identity

An Absence of Mistake of Identity in English Law

Identity Frauds: Criminal Law and the Law of Obligations

Hardman v Booth: A Turning Point

Cundy v Lindsay: The Beginning of Mistake of Identity

The Treatise Writers and the Development of Mistake of Identity

New Legislation and a Changed Judicial Approach

9. Mistake after Fusion

The Judicature Act 1873

Equitable Mistake in the Chancery Division of the High Court

The Impact of Procedural Unity upon Substantive Law

Reform and Perform

The Growing Necessity for the Mistake to be Bilateral

The Increasing Rigidity of Equitable Relief

Substantive Fusion of Mistake

A Reduced Ambit for Mistake in Equity

Common Law Mistake in the High Court

The Importance of Bell v Lever Brothers

The Court of Appeal

The House of Lords

The Importance of Solle v Butcher

10. Summary and Conclusions

Summary

Common Law Legal Development

Transplants

Contractual Mistake in Modern law

Notes:

Description based upon print version of record.

Includes bibliographical references and index

ISBN:

9786612659416

9781472560674

1472560671

9781282659414

1282659413

9781847315533

1847315534

OCLC:

651601681