Mistakes In Contract Law

McKeag, Edwin C. Mistake in Contract: A Study in Comparative Jurisprudence. New York: Columbia University Press, 1905. 132 pp. Reprinted 2003 by The Lawbook Exchange, Ltd. LCCN 2002072856. ISBN 1-58477-276-X. Cloth. $60. * In contract law there are two types of mistake as determined by Savigny. The first, echt, represents those cases in which consent exists, but the contract is impeachable due to the determination of mistake. This work examines the second class of mistake in contract, unecht, "...in which real consent is lacking, resulting in the nullity of the contract, while the mistake is an accompanying feature" (Preface). This class of mistake is traced from Roman law to common law and modern civil law. Originally published as Volume XXIII, Number 2 in Columbia's series, Studies in History, Economics and Public Law.

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.

This book fully explains the role of Misrepresentation in Contract Law. It further expands on the role of Mistake and Non-disclosure in a contractual dispute and formally comments on the general duties of negotiating parties.

Vitiation of Contracts proposes a new theory to explain the rationale of general vitiating factors in English contract law. It provides a clear link to voluntariness as the foundation of contractual liability and compares the English position, in light of this theory, with the Principles of International Commercial Contracts (PICC), the Principles of European Contract Law (PECL), the Draft Common Frame of Reference (DCFR) and the US Restatement (Second) of Contracts.

English law, unlike in Europe and in the US, seldom gives relief when a party to a contract finds that she has entered the contract under a serious mistake about the subject matter or the facts. This book argues that small businesses suffer as a result, and proposes possible solutions, including adopting the proposed Common European Sales Law.