Overview

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.

Full Product Details

Author:   Catharine MacMillan
Publisher:   Bloomsbury Publishing PLC
Imprint:   Hart Publishing
Dimensions:   Width: 15.60cm , Height: 2.70cm , Length: 23.40cm
Weight:   0.716kg
ISBN:  

9781841135076

ISBN 10:   1841135070
Pages:   348
Publication Date:   15 January 2010
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Active
Availability:   Manufactured on demand  
We will order this item for you from a manufactured on demand supplier.

Table of 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 Conclusions 5. Pothier and the Development of Mistake in English Contract Law Pothier and the Traite 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 Conclusions 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 Conclusions 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) Conclusions 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 Conclusions 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 Conclusions 10. Summary and Conclusions Summary Conclusions Common Law Legal Development Transplants Contractual Mistake in Modern law

Reviews

The book will be a fascinating insight into the background of current difficulties for anyone interested in contract law. Duncan Sheehan Restitution Law Review June 2010 This book would clearly be of value for those interested in contract and commercial law, but it also provides much to think about for those who are interested in the history and development of the law in general, and the interactions between different legal systems specifically. Dr Sean Thomas The Journal of Business Law Issue 7, 2010

The book will be a fascinating insight into the background of current difficulties for anyone interested in contract law. Duncan Sheehan Restitution Law Review June 2010 This book would clearly be of value for those interested in contract and commercial law, but it also provides much to think about for those who are interested in the history and development of the law in general, and the interactions between different legal systems specifically. Dr Sean Thomas The Journal of Business Law Issue 7, 2010 The author has ... meticulously research each of the principal judicial pronouncements that has assisted in the development and understanding of the doctrine of mistake...a useful historical analysis. Anthony Lo Surdo Australian Banking and Finance Law Bulletin Volume 26, Number 5 ...this is a legal history book. It will clearly be of interest to legal historians and to academics who want to know how the law developed to its current state. David Capper Canadian Business Law Journal Volume 49 ...there can be no denying that [MacMillan] has produced a very worthwhile and thorough book. It is impressively wide-ranging, carefully researched, and brings to light previously overlooked evidence about the development of mistake in the English law of contract. As a result of it, our understanding of this difficult doctrine has taken a big step forward. Paul Mitchell The Journal of Legal History 32: 1

Macmillan has produced a stimulating and, at times refreshing account of mistake [which] will be of interest to any modern lawyers and law students curious to know what caused all the confusion in the first place. Warren Swain The Edinburgh Law Review Volume 15, Issue 2, May 2011 ...a fascinating insight into the background of current difficulties for anyone interested in contract law. Duncan Sheehan Restitution Law Review June 2010 ...clearly of value for those interested in contract and commercial law, but it also provides much to think about for those who are interested in the history and development of the law in general, and the interactions between different legal systems specifically. Dr Sean Thomas The Journal of Business Law Issue 7, 2010 The author has ... meticulously researched each of the principal judicial pronouncements that has assisted in the development and understanding of the doctrine of mistake...a useful historical analysis. Anthony Lo Surdo Australian Banking and Finance Law Bulletin Volume 26, Number 5 ...this is a legal history book. It will clearly be of interest to legal historians and to academics who want to know how the law developed to its current state. David Capper Canadian Business Law Journal Volume 49 ...there can be no denying that [MacMillan] has produced a very worthwhile and thorough book. It is impressively wide-ranging, carefully researched, and brings to light previously overlooked evidence about the development of mistake in the English law of contract. As a result of it, our understanding of this difficult doctrine has taken a big step forward. Paul Mitchell The Journal of Legal History 32: 1

The book will be a fascinating insight into the background of current difficulties for anyone interested in contract law. Duncan Sheehan Restitution Law Review June 2010 This book would clearly be of value for those interested in contract and commercial law, but it also provides much to think about for those who are interested in the history and development of the law in general, and the interactions between different legal systems specifically. Dr Sean Thomas The Journal of Business Law Issue 7, 2010 The author has ... meticulously research each of the principal judicial pronouncements that has assisted in the development and understanding of the doctrine of mistake...a useful historical analysis. Anthony Lo Surdo Australian Banking and Finance Law Bulletin Volume 26, Number 5 ...this is a legal history book. It will clearly be of interest to legal historians and to academics who want to know how the law developed to its current state. David Capper Canadian Business Law Journal Volume 49

Author Information

Catharine MacMillan is a Professor of Law and Legal History at the University of Reading.

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