Mistake in Contracting
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"This text completes what LexisNexis is marketing as their “Truth in Contracting” trilogy. The first two books in the series were Estoppel (second edition published in 2019) and Misrepresentation (2016), all written by Bruce MacDougall, a professor at the University of British Columbia…
Libraries looking to expand their contract law holdings, including academic law libraries, should consider purchasing this book, as well as libraries serving lawyers involved in commercial litigation and resolving contractual disputes. Libraries with one or both of the first two books in this series in their collections should complete the set with Mistake in Contracting to provide their patrons with complete access to a detailed explanation and critique of the law in this area."
Reviewed by Melanie R. Bueckert, LL.B., LL.M.
Legal Research Counsel, Manitoba Court of Appeal
See Review in 2019 Canadian Law Library Review 44:2 (pages 16-17)
"What happens if I find myself a party to a contract I entered into ‘by mistake'?"
So begins the Preface of Bruce MacDougall's latest publication, Mistake in Contracting. Joining other publications, Misrepresentation and (Dis)Honest Performance in Contracts, 2nd Edition (2021) and Estoppel, 2nd Edition (2019), this third book in MacDougall's trilogy on "truth in contracting" aims to answer that question by bringing "some order to the law on mistake in contracting." This is not necessarily an easy task, as he explains: "What seems like a simple question is surprisingly complicated, both in terms of understanding what that question means or encompasses and also in terms of how the law will or will not respond to such a situation."
That said, MacDougall delves into the topic with committed enthusiasm, and in the process, sheds valuable new light on this complex subject.
Mistake in Contracting is divided into two parts.
Part A examines the issues that unite the different aspects of mistake and make it a "family" of doctrines, as well as the relationship between the family of mistake doctrines and other doctrines that arise in contract contexts.
In Part B, readers will learn about the various context and doctrines of mistake. In particular, attention is paid to mistake inside the contract, such as errors connected to the obligations the parties have taken on or the very nature of the transaction – non est factum. Other examples of this type of mistake are examined in chapters on errors in particular terms in the contract or in how the contract was recorded. Mistake in the background to the contract is discussed in detail in chapters relating to erroneous assumptions made by the parties or by one party that, at least in part, induced the contract, as well as mistake as to the identity of the other party.
Ultimately, lawyers and other legal professionals can rely on this text to provide a comprehensive treatment and analysis of developments in the area of mistake in both Canada and the U.K., including the recent Supreme Court of Canada cases that address the issue of rectification.
A valuable resource
Mistake in Contracting would be useful additions to the libraries of:
- Corporate and commercial lawyers seeking to understand the intricacies of this crucial aspect of contract law so they can advise their clients on the possible outcomes and consequences arising from mistake
- Judges who can refer to this comprehensive resource to assist with their decision-making responsibilities
- Professors and law students who can use it as an additional course resource
Table of contents
PART A – MISTAKE IN GENERAL
Chapter 1 – Themes in mistakeChapter 2 – Relationship with other doctrines
II. The acceptance of mistake into English law
III. Themes in mistake in contracting
A. Consent, intention and motivation
B. Subjective and objective assessments
C. Essential and fundamental qualities
D. Common law & equity
E. Mistake and other-party interests
V. Evidentiary and procedural issues
I. Other mistake-related doctrines
A. Relationship to misrepresentation
D. Relationship with good faith and honest performance
II. Related non-mistake contract issues
A. Offer and acceptance
PART B – CONTEXTS OF MISTAKE
Chapter 3 – Non est factumChapter 4 – Mistake as to terms
I. Contexts for non est factum
II. Relationship to misrepresentation law
III. Relationship to the signature doctrine
IV. Fundamental difference in the contract
V. Carelessness or negligence as a bar
VI. Characteristics of the mistaken person
VII. Impact on third parties
I. Mistake as to terms and mistake as to effect
A. Equivalent to a condition?
III. Mistake as to terms and offer and acceptance
IV. Who is mistaken
C. UnilateralChapter 5 – Rectification
II. Relationship with other writing doctrines: Signature doctrine and the parole evidence rule
III. Equitable nature
IV. Effect of rectification
V. Relationship with construction
A. Determining what was agreed
B. Interpreting the agreement
C. Need for a completed written contract?
D. Specific wording
VI. Different types of mistake: Common, unilateral, mutual
A. Common mistake
B. Unilateral mistake
C. Mutual mistake
VII. Equitable considerations
A. Clean hands
B. Third parties
C. Irrelevancy and impossibility
D. Delay and acquiescence
VIII. Elections relating to rectification
A. Rectification versus specific performance
B. Rectification versus rescission
IX. Evidentiary and procedural issues
A. Standard of proof
B. Evidentiary difficulty
Chapter 7 – Mistake in identity
Chapter 6 – Mistaken assumptions
II. Types of mistaken assumptions
B. Mistake as to identity of other party
C. Mistake as to possibility
D. Mistake as to important quality
III. Who is mistaken
A. Common mistake
B. Unilateral mistake
C. Mutual mistake
IV. Effect of mistaken assumption
A. Which contract
B. Relevance of fault
C. Common law versus equity
I. Contexts of mistaken identity
II. Relationship with misrepresentation
III. Relationship with non est factum
IV. Identity as a term of the contract
V. The development of a law on mistaken identity
A. Pre-Shogun Canadian authority
B. The Shogun case
C. Shogun in Canada
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