Mistake
The concept of mistake in the context of contract law serves to negative, or to nullify, consent by preventing the parties involved from reaching agreement and nullifying consent where the parties reach agreement, according to Bell v. Lever Bros Ltd [1932] AC 161, HL. But it is also important to appreciate equitable remedies do not serve to distinguish between mistakes negativing, and nullifying, consent, as well as where a party who paid money seeks to recover it in restitution, illustrated by Kelly v. Solari (1841) 9 M & W 54. However, mistake will not negative consent unless it is material to the agreement’s formation, according to Dennant v. Skinner & Collom [1948] 2 KB 164. This is because, without the assent of both parties, in most cases each party will look as though they are assenting to the proposed terms; so the objective test will preclude any party from denying an agreement, supported by OT Africa Line Ltd v. Vickers plc [1996] 1 Lloyd’s Rep 700.
Nevertheless, if one party is, to the knowledge of the other in a given case, mistaken as to the terms, evidence of subjective intention is admitted, according to LCC v. Henry Boot & Sons Ltd [1959] 3 All ER 636, HL, so there will be no agreement in the objective sense and may be even no agreement at all, illustrated by Belle River Community Arena Inc v. WJC Kaufmann Co Ltd (1978) 87 DLR (3d) 761. However, it is also to be appreciated that there seems to be no reason why there should not be a subjective agreement where the other party is estopped, according to Alternative Publishing Ltd v. Kingstar Manufacturing (UK) Ltd [1996] CLY 1223, CA, and equitable remedies have been granted, supported by A Roberts & Co Ltd v. Leicestershire County Council [1961] Ch 555.
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