The role of mistake in the law of contract

• Author: Calvin A. Eversley
• Position: LL.M. (Harvard), LL.B. (Hons), LE. C., D. P. A. (Distinction), Senior Lecturer in Law, University of Guyana
• Pages: 275-286

THE ROLE OF MISTAKE

IN THE

LAW OF CONTRACT

CALVIN

A.

EVERSLEY*

INTRODUCTION

This paper seeks to examine, and hopefully answer, the critical question as to

whether mistake still plays a valid and meaningful role in the law of contract

today. Is the problem of mistake largely an issue of contractual construction?

Consequently, if this is true or substantially

true,

one needs to consider whether

the problem is a reflection of poor or sloppy drafting or conservative or faulty

judicial analysis. The

cases

of Mc

Crae

v.

Commonwealth

Disposals

Commission1

and, more recently, William

Sindall

plc v. Cambridgeshire County Council2

emphasize the constructionist approach to the solution of contractual prob-

lems involving mistake and, at the same time, underscore the minimal or

non-existent role of mistake in cases where contracts are construed to have

allocated the risk of the parties' mistakes.

Another perspective that will be looked at, in terms of evaluating the

relevance of the role or function of mistake, is the question as to whether the

rules and remedies for misrepresentation provide a more effective and equitable

recourse than mistake for the solution of common contractual problems.

*LL.M.

(Harvard), LL.B. (Hons),

LE.C.,D.P.A.

(Distinction), Senior Lecturer in Law, University of

Guyana; former Registrar of Companies, British Virgin Islands; former Assistant Attorney-General,

USVI Department of

Justice:'

former Magistrate (Guyana).

1

(1951)

84 CLR 377.

2 [1994]

3

AlI

E.R.

932.