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New Developments in Mistake of Identity

Published online by Cambridge University Press:  16 January 2009

J. C. Hall
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Extract

It was only six years ago that C. J. Slade wrote his memorable article “The Myth of Mistake in the English Law of Contract” in which he placed the whole subject of mistake in a new and agreeable perspective. “Mistake as such,” he declared, “has no operative effect whatever at law.”

This was good news for the student; but problems of error in persona still had to be solved, and for these Mr. Slade proposed a simple application of the basic principles of offer and acceptance. The test was whether A's offer was addressed to B and B's acceptance addressed to A, their intention being construed objectively unless that of the one was known to the other, in which case the actual intention of the former determined the matter. The authorities, for the most part, ranged themselves in substantial support, and rationality, it seemed, had been injected at last into this confused branch of the law.

This reassurance has now been disturbed by the case of Ingram v. Little, which reminds us that the offer and acceptance test is no magic formula acting as a ready panacea for all the ills caused by error in persona.

The facts which gave rise to Ingram v. Little are by now well known. Three ladies who wished to sell their car were offered an acceptable price by a stranger, but they made it plain they would not accept payment by cheque. He then pretended to them that he was a certain P. G. M. Hutchinson and quoted an address which the ladies found to be the one shown beside that person's name in the telephone directory.

Type
Research Article
Information
The Cambridge Law Journal , Volume 19 , Issue 1 , April 1961 , pp. 86 - 102
Copyright
Copyright © Cambridge Law Journal and Contributors 1961

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References

1 70 L.Q.R. 385.

2 p. 407.

3 Sowler v. Potter [1940]Google Scholar K.B. 271 was an obvious exception, but this decision had been heavily criticised by Professor Goodhart (57 L.Q.R. 228) and disapproved by Denning L.J. in Solle v. Butcher [1950]Google Scholar 1 K.B. 671 at p. 691.

4 [1961] 1 Q.B. 31, noted [1960] C.L.J. 145.

5 So it was found by the judge. Sellers L.J. commented however that “the defendant … might have been more astute and more careful” (p. 47).

6 At pp. 51, 53.

7 57 L.Q.R. 228.

8 Traité des Obligations, s. 19, p. 13; first cited in England in Smith v. Wheat-croft (1878)Google Scholar 9 Ch.D. 223. For some interesting observations on Pothier's theory see Smith and Thomas, 20 M.L.R. 38.

9 See p. 54.

10 (1897) 14 T.L.R. 98.

11 It may be noticed however that in the King's Norton Metal Co. case the plaintiffs had dealt with Wallis before and his cheque had been honoured on that occasion. See Pollock on Contract, 13th ed., p. 388, n. 10b.

12 The contract will of course be voidable for the misrepresentation.

13 [1940] K.B. 271.

14 57 L.Q.R. 228 at p. 243. The decision was defended by Mr. J. F. Wilson (17 M.L.R. 515) who argued that the question is whether A intended to make this contract with B, not whether he intended to make another contract with C. But Mr. J. Unger in his reply (18 M.L.R. 259) shows that this is not the question English law asks, nor the question it ought to ask.

15 Solle v. Butcher [1950]Google Scholar 1 K.B. 671 at p. 691: “I do not think that Sowler v. Potter can stand with King's Norton Metal Co. v. Edridge & Co.”

16 See per Sellers L.J. at p. 50.

17 p. 50. The question does not previously seem to have arisen but it has been discussed by Dr. Glanville Williams ((1945) 23 Canadian Bar Review 271). He shows that if the requirement is merely that C should exist the results can be very arbitrary. It would be strange if the King's Norton case would have been decided differently if a firm named Hallam & Co. had happened to exist, though quite unknown to the plaintiff.

18 p. 50.

19 pp. 50–51.

20 [1960] N.Z.L.R. 406 (C.A.).

21 Gresson P. dissented, though one of his grounds for doing so was that B was not the duly authorised agent of the owner.

23 At p. 426.

24 If however they knowingly stood by while their car was sold and made no claim they might lose their title by estoppel (Sale of Goods Act, 1893, s. 21).

25 It should be remembered however that if they recovered the car the person required to return it would have an action for return of the price against his vendor and he against his vendor, the ladies eventually having to repay the “rogue” if he himself had repaid his purchaser. (See Sale of Goods Act, 1893, s. 12 (1).)

26 p. 412. Dr. Glanville Williams however cites the case of Mackie v. European Assurance Society (1869) 21 L.T. 102 as authority for the proposition that a void contract is not necessarily a nullity (23 C.B.R. at p. 397).

27 p. 56.

28 p. 64.

29 57 L.Q.R. 228 at p. 231.

30 (1878) 3 App.Cas. 459. Blenkarn ordered handkerchiefs from Lindsay, writing from his address, 37 Wood St. but making his signature look like “Blenkiron & Co.” W. Blenkiron & Son, whose address was 123 Wood Street, were known by Lindsay to be respectable.

31 (1876) 1 Q.B. 348 at 355.

32 The Court of Appeal ((1877) 2 Q.B. 96) seemed chiefly influenced by the fact that the court below had admitted that Blenkarn had been correctly convicted of obtaining the goods by false pretences and considered that it was contradictory to hold that “there was a valid sale.”

33 At p. 465.

34 At p. 469.

35 At p. 471.

36 [1919] 2 K.R. 243.

37 23 Canadian Bar Review 271 at p. 275.

38 At p. 246.

39 At p. 246.

40 57 L.Q.R. 228 at pp. 210–241.

41 [1927] A.C. 487.

42 “The misrepresentation was only as to payment” (p. 502). This explanation of the decision had been proposed by Professor E. C. S. Wade in (1922) 38 L.Q.R. 201. It is strongly criticised by Sir Carleton Allen in 44 L.Q.R. 72.

43 [1961] 1 Q.B. 31, at p. 51.

44 p. 60.

45 p. 59.

46 p. 49.

47 p. 59.

48 p. 59.

49 p. 65.

50 p. 65.

51 p. 65.

52 Where a contract has a foreign element the law of the country which governs the contract is known as the proper law of the contract. This example is not perhaps entirely happy, because modern authority has laid down that the proper law is not to be determined simply by the application of presumptions: see The Assunzione [1954] P. 150; Tomkinson v. First Pennsylvania Banking Co. [1960]Google Scholar 2 W.L.R. 969.

53 p. 66.

54 Edmunds v. Merchants Despatch Co. (1883)Google Scholar 135 Mass.Rep. 283; Phelps v. McQuade (1917) 220 N.Y.Rep. 232. Corbin on Contract (1951) Vol. 3, s. 602, p. 385 was also cited.

55 8th ed., p. 102.

56 p. 107.

57 Edmunds v. Merchants Despatch Co., supra.

58 p. 284.

59 [1927] A.C. 487.

60 At p. 500.

61 At p. 504.

62 pp. 66, 67. This would explain Hardman v. Booth (1863)Google Scholar 1 H. & C. 803.

63 Supra.

64 See the statement of facts at (1878) 3 App.Cas. 460. It was because this action failed to produce satisfaction that an action was brought against Cundy.

65 p. 67.

66 Supra, note 1.

67 pp. 67, 68.

68 [1932] A.C. 161. See also Norwich Union Fire Insurance Soc. Ltd. v. Price [1934] A.C. 455.

69 p. 217.

70 The mistake of the one must be known to the other or the mistaken party will be subject to estoppel.

71 The link between frustration and common mistake was emphasised by Mr. Slade—70 L.Q.R. 385 at p. 403.

72 See Bell v. Lever Bros., supra. Cheshire and Fifoot (The Law of Contract, 5th ed., p. 184) maintain however that the common law has no doctrine of common mistake as such.

73 See Solle v. Butcher [1950]Google Scholar 1 K.B. 671.

74 Davis Contractors Ltd. v. Fareham U.D.C. [1956]Google Scholar A.C. 696 at pp. 728–729.

75 [1941] A.C. 251.

76 p. 68.

77 p. 68.

78 See note 8, supra.

79 See note 70, supra.

80 p. 69.

81 p. 68.

82 (1945) 23 Canadian Bar Review 271 at p. 273.

83 Fawcett v. Star Car Sales Ltd., supra, provides a striking example. A's concern was that the person with whom he was dealing owned the car.

84 See Dr. Glanville Williams 23 C.B.R. at p. 279.

85 This is clearly established by King's Norton Metal Co. V. Edridge, Supra.

86 If, as in Sowler v. Potter [1940]Google Scholar K.B. 271, B and C are really one person there is not even any mistake of identity, as Professor Goodhart has shown: 57 L.Q.R. 228 at pp. 241–244.

87 Sale of Goods Act, 1893, s. 23.

88 p. 73.

89 pp. 73, 74.

90 (1878) 3 App.Cas. 459 at p. 463.

91 See Sale of Goods Act, 1893, s. 21 (1).

92 [1957] 1 Q.B. 371.

93 At p. 393.

94 The dissenting judgment of Denning L.J. offers strong support for a wide application of estoppel.

95 At p. 394.

96 [1954] 2 All E.R. 734 at p. 747. See also Solle v. Butcher [1950]Google Scholar 1 K.B. 671 at p. 693.

97 (1878) 3 App.Cas. 459 at p. 463.