THE COPPERBELT UNIVERSITY

SCHOOL OF BUILT ENVIRONMENT

ES340 LAW OF CONTRACT AND TORT

2018-2019

12 MISTAKE

Learning Objectives

After reading this topic you should be able to:

 Understand the effect of a mistake on a contract.

 understand the relevant characteristics of the three types of mistake: common, mutual & unilateral
 Understand the consequences of the different types of mistake
 understand the key areas of law or contractual aspects concerning each type of mistake

 Apply the law to factual situations and reach conclusions

12.1 NATURE OF MISTAKE

There are a number of ways in which one party, or both parties may make a mistake in relation to contract.
For example, the mistake may be in relation to the terms of the contract; subject matter of the contract;
identity of the other contracting party; or the nature of the signed document. A mistake at law is a
misapprehension by one, or both parties about some fundamental underlying fact or aspect of the
contract in relation to either its formation or performance. The general rule is that where one or both
parties are mistaken about an aspect of the contract, the contract is usually still valid unless where such a
mistake is so fundamental as to render the contract void. A fundamental mistake is one that goes to the
main purpose of the contract and makes of the contract impossible to exist or perform. In such a situation
the parties are returned to their original position before the contract and no rights can pass under the
contract. The doctrine of mistake can be divided into two broad categories, namely: (1) mistake nullifying
consent (performability mistake), and (2) mistake negativing consent (Agreement mistake). Performability
mistake occurs where the parties reach an agreement based on a fundamental incorrect assumption made
by both of them, which renders the contract impossible to perform or devoid of purpose. Thus, in technical
terms, there is a valid contract, but it is impossible to perform, or if performed it would operate in a way
which is fundamentally different from what the parties supposed it to be. The specific types of mistake in
this category include common or shared mistake. In contrast, an agreement mistake occurs where the
parties are at cross-purposes so as to prevent them from reaching an agreement. Such mistakes are
generally said to operate to prevent formation of a contract due to lack of agreement between the parties.
This category comprises of cross-purposes mistake which include mutual and unilateral mistake.

12.2 TYPES OF MISTAKE

There are two types of mistakes in law:

 Common or shared mistake – where both parties make the same mistake

 Cross-purposes mistake – where each party wrongly believes that the other party has agreed to his

or her terms – i.e. each party has a different view of the contractual situation.

12.2.1 COMMON MISTAKE

A Common mistake arises where both parties to the contract make the same (shared) mistake.

Legal principle: A shared mistake can only render the contract void if it amounts to a fundamental
mistake. A fundamental mistake is one which renders the contract impossible to perform, or if performed it
would be essentially and radically different from what the parties supposed it to be. In other words, there
must be a sufficient degree of disparity between performance of the contract in its mistaken state of affairs
and performance in its actual state of affairs.

The three types of common mistake are:

 mistake as to the non-existence of the subject matter – where at the formation of the contract the
subject matter does not exist;

 mistake as to title / ownership of the subject matter – where at the formation of the contract the
subject matter already belongs to the purchaser; and

 mistake as to quality of the subject matter.

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(I) Mistake as to the Non-existence of the Subject Matter

This type of mistake arises where at the formation of the contract both parties had a belief that the subject
matter exists when, in fact, it no longer exists. The contract will be held to be void for an operative mistake.
For example, a contract for the sale of specific goods where those goods have already perished as
illustrated in Couturier v Hastie (1856).Brief facts were:

A contract for the sale of a cargo of corn was made whilst the corn was in transit. Unknown to either party,
the corn had been sold by the ship’s captain, because it had begun to overheat and ferment shortly before
the contract was made. The seller sought to enforce payment for the goods on the grounds that the
purchaser had attained title to the goods and therefore bore the risk of the goods being damaged, lost or
stolen.
Held: that the contract was void for common mistake because at the time the contract was made the
subject matter no longer existed. The purchaser was not liable for the payment of the cargo.
In Scot v Coulson (1903) a contract for the sale of a life assurance policy was held to be void for a
common mistake because, unknown to both parties the subject of the policy was already, in fact, dead.

Exception
Guaranteed existence of the subject matter- Where the subject matter of a contract does not exist, but
one party can be taken to have superior knowledge about the existence of the subject matter, there will be a
valid contract. This is largely because one party relying on another’s superior knowledge in entering into the
contract, and it therefore makes sense if that reliance turns out to be untrue, damages should be
recoverable. In such a situation, there is an implied term that one of the parties will provide the subject
matter of the contract and failure to do so amounts to breach of the contract. This principle is illustrated in
McRae v Commonwealth Disposals Commission (1952).

The claimants entered into a contract with the defendant, which gave the claimants the right to salvage a
wrecked oil tanker which the defendant stated contained oil and was lying at a particular location. After
spending a considerable sum in attempting to locate the wreck, it became apparent that the wreck never
existed.
Held: The claimants had bought the salvage rights on the implied condition in the contract that the wreck
existed. The court concluded that ‘the only proper construction of the contract is that it included a promise
by the Commission that there was a tanker in the position specified’. Therefore the contract was valid, it

had been breached by the defendant, and the claimants were entitled to damages.

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(II) Mistake as to Ownership/Title of the Subject Matter

Mistake as to title occurs where a party contracts to buy something which in fact already belongs to him or
her. The general rule is that: where the parties contract to transfer some ownership or title in property,
unknown to either the property already belongs to the buyer the contract is void for an operative mistake.

Cooper v Phibbs (1867)

The claimant (nephew) leased a fishery from his uncle who later died. When the lease came up for renewal
the nephew renewed the lease from the defendant (aunt) and both parties thought that defendant owned
the property, but it was later discovered that at the time of the contract, the uncle had already given the
nephew a life tenancy in his will.
Held: The lease was held to be voidable for mistake as the nephew already had rights to the fishery.

(III) Mistake as to Quality of the Subject Matter

The general rule is that a common mistake which merely affects the quality or value of the subject matter
of the agreement does not make the contract void. This is because the parties agreed in the same terms on
the same subject matter. A mistake as to quality is only capable of rendering a contract void if the mistake
so fundamental – i.e. the mistake as to the existence of some quality which must render the subject
matter of the contract essentially different from what was expected or from the thing as it was believed
to be; or that the mistaken common assumption is so serious to make performance impossible, or where it
becomes impossible to achieve the intended purpose of the agreement. The requirements and application
of this rule is illustrated in the following key cases.

Bell v Lever B rothers Ltd (1932)

Common mistake as to the validity of service contracts - since both parties thought that the service
contracts could only be terminated with compensation, when in fact no compensation was required.
Legal issue: whether the mistake as to the validity of service contracts was so fundamental to make it
impossible to achieve the intended purpose.
Lever bros appointed Mr Bell and Mr Snelling as Chairman and Vice Chairman to run a subsidiary company
called Niger for a term of 5 years. Before the expiry of their 5 year service contracts, Lever Brothers wished
to terminate their employment with a compensation agreement of £30,000 and £20,000 respectively, to
ensure a smooth corporate merger of the Niger Company with another subsidiary. Later Lever Brothers
discovered that both defendants had committed serious breaches of duty during their employment, which
would have entitled Lever Brothers to dismiss them without compensation. It was also found the two
employees had forgotten about their breaches of duty, as such, they were mistaken in believing that their
employment contracts could only be terminated by compensation. Lever Brothers tried to recover the
compensation paid on the ground of fraud. When this failed, it relied on the alternative ground of common
mistake.

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Held: It was held that the compensation agreements were not void of mistake because the nature of the
mistake which occurred only related to the quality of the service contracts, which were the subject matter
of the compensation agreements. In this case, whether or not the employment contracts were terminated
by compensation, the company was still able to achieve its intended objective, being an early termination of
the employment contracts to ensure corporate merger upon which the compensation agreements were
based. The payment of £50,000 compensation package did not make the contract fundamentally different
from the parties’ expectations.
Great Peace Shipping Ltd v Tsavliris Salvage International Ltd (2002)
Common mistake as to quality of rescue services- both parties thought that the ships were very much closer
to each other -in fact the ships were further miles apart.
Legal issue: whether the mistake as to distance was fundamental to make the rescue services essentially
different from which the parties had agreed.
The defendant agreed to provide rescue services to a ship called the Cape Providence (CP), which had
suffered serious structural damage in the South Indian Ocean and was in imminent danger of going down
with her crew and cargo. The defendants then hired a vessel, the Great Peace from the claimants, which
both parties believed to be very near (35 miles away) from the damaged ship (CP). In fact, it was 410 miles
away and, when the defendants discovered this, they looked and found another ship which was much
closer, and then sought to cancel the contract with the claimants, and refusing to make any payments for
the hire of the Great Peace on grounds of common mistake - i.e. that the contract was based on the
common incorrect assumption that the two ships were closer together. However, GPS refused to cancel the
contract and brought an action for breach.
Held: The common mistake which arose did not the render the services essentially different from what the
parties had agreed because it was still possible for the Great Peace to provide several days of rescue
services despite the longer distance. The fact that the vessels were further apart than both parties had
assumed, it did not mean that it was impossible to perform the services contracted.

12.2.2 CROSS-PURPOSES MISTAKE

This type of a mistake occurs in those contractual situations where it is not possible to establish a common
intention between the parties. Thus, each party has a different view of the contractual situation. The two
types of cross-purposes mistakes are:

 Mutual mistake – where neither party is aware that the other is contracting on a different basis.
 Unilateral Mistake – where one party is aware of the other’s mistake.

A) Mutual Mistake

A mutual mistake occurs where both parties are mistaken as to each other’s intention. Thus, both parties
make different mistakes resulting from two different understandings of the facts. In essence, the parties are
not really in agreement right from the outset, as they make different assumptions in forming the contract.
In such a situation it can be said that there is no meeting of the minds (consensus ad idem).The mistake will

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only be operative if it is impossible to reconcile the differences. For example, X intends to sell one thing,
whilst Z intends to buy something different.

Specific areas of fundamental mutual mistake

A mutual mistake will usually occur in relation to either:

 the terms of the contract or

 the subject matter of the contract.

(I) Mistake as to the T erms

A mutual mistake as to the terms of the contract will be operative where one party intends to contract or
deal on one set of terms and the other intends deal on a different set of terms. In such a situation a contract
can be held void for an operative mistake because it is difficult to establish the common intention (meeting
of the mind) between the parties. This was illustrated in Raffles v Wichelhaus (1864), where the
parties were referring to different vessels.

The defendant agreed to buy a cargo of cotton from the claimants to be shipped by the vessel named ‘The
Peerless' from Bombay. Unknown to the parties, there were two ships of that name leaving Bombay in
October and December respectively. The defendant meant the 'The Peerless' which sailed in October, whilst
the claimant meant 'The Peerless' which sailed in December. The defendant refused to accept the cotton
sent on a ship which sailed in December. The claimant claimed that he was ready to deliver the goods
shipped on the named vessel in the agreement, and that the defendant was liable for refusing to accept or
pay for the goods.
Held: There was no possibility of finding a common intention between the parties. The contract was void
for mistake.

(II) Mistake as to the Subject Matter

A mutual mistake concerning the subject matter of the contract occurs where one party intends to contract
or deal on one thing and the other party intendeds to deal or contract on something different. Such a
mistake is operative and makes the contract is void. The case in point is Scriven Bro & Co v Hindley &
Co (1913).

The claimant instructed an auctioneer to sell certain bales of hemp and tow. Unusually, both lots were
bearing the same markings. When the lot of tow came up for sale, the defendant believing it to be hemp
made a bid price that was appropriate for hemp, but an excessive one for tow. This bid was immediately
accepted by the auctioneer, who did not realise the buyer’s mistake, but merely thought the bid was an
extravagant one for tow. The contract was therefore concluded with the auctioneer thinking, correctly, that
he was selling tow, and the defendant thinking, wrongly, that he was buying hemp – neither was aware that
they were at cross-purposes. The claimant sought to enforce the contract by suing for the price.
Held: It was not possible to establish whether the contract was for tow or hemp and consequently the
contract was held to be void.

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B) Unilateral Mistake

A unilateral mistake occurs where only one of the parties is genuinely mistaken and the other party is aware
of the mistake. A unilateral mistake will usually arise in relation to the following areas:

 mistake as to the terms of the contract ,

 mistakes as to identity of the contracting party, and

 mistake as to the nature of the signed document

(I) Unilateral Mistake as to the Terms of a Contract

Legal principle: Where one party is mistaken as to the terms of the contract and the other party is aware of
the mistake, the contract will be void regardless whether the term is fundamental. However, there is an
exception to this rule if the other party is unaware of the mistake, the contract will be binding even if there
is a genuine mistake.

Hartog v Colin & Shields (1939)

The defendants mistakenly offered a large quantity of hare skins at a certain price per pound
(weight) instead of price per piece. The price stated by the defendant was extremely low (there are
about three hare skins to the pound).The negotiations leading to the sale had been on the basis of
price per piece and this was the accepted custom within the trade. The claimant accepted the offer
and tried to enforce the contract. When the defendants realised about this mistake they refused to
deliver the skins and were sued by the claimants for non-delivery.
Held: The claimants clearly must have realised that a clerical error had been made in the offer
because hare skins were generally sold per piece, and were not entitled to take advantage of it. It
was a material mistake and therefore the contract was void.

(II) Unilateral Mistake as to Identity of a party to a Contract

Mistake as to identity occurs where one party enters into a contract having mistaken identity of the other
party. Mistakes as to identity are generally induced by an element of misrepresentation or fraud in that one
of the parties is claiming to be someone who they are not. For example, A enters into a contract with B (a
fraudster) on a belief that B is C .The crucial issue to consider is whether the mistake concerns identity or
attribute. The law draws a fine distinction between where someone intended to contract with someone
else (identity), and a mistake which is merely to a person’s attributes, such creditworthiness/solvency,
character, or social position) when in fact they are not. The general rule concerning mistaken identity is
that: where there is a genuine mistake as to the actual identity of a party to a contract, the contract will be
void for an operative mistake. However, there is an exception if the mistake concerns the other person’s
attributes rather than their identity, the contract may be voidable for fraudulent misrepresentation.

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When does title/ownership rights pass & recovery of goods/property in a
mistaken identity contract?

The problem that arises from mistake to identity contracts is that in most instances goods or property may
be sold on credit to a fraudster who pretends to be someone else and later sells the goods/property to an
innocent third party who buys in good faith. The central question is: whether the original owner of the
goods can recover the goods from an innocent third party in good faith. In order to succeed, it had to be
established that the initial contract between the original owner and the fraudster was void of mistake, and
in such a situation the title or right of ownership the goods does not pass to the fraudster and cannot be
passed on the innocent third party purchaser in good faith. On the other hand, if the contract is voidable
for fraudulent misrepresentation, title/ ownership rights to the goods or property may pass the fraudster
and can sell the goods on to an innocent third party, who in turn will acquire good title or ownership of the
goods. There are two remedy options available to the seller. The first is that the original seller may seek
court action to have the original contract set aside if the goods have not been sold to an innocent third
party. The courts will not set aside a voidable contract after the goods have already been bought in good
faith by a third party. Therefore the second remedy to the original seller is to sue the fraudster for damages,
if he can be found and is financially worth suing.

Guiding rules in distinguishing mistake as to identity v attributes

In deciding whether the unilateral mistake concerns the identity or attributes of the other party to
the contract, the courts usually apply the following guiding rules to draw the distinction:

 contracts made by written agreements – where the parties deal only with documentation
 contracts made in written documentation by non-existence of the identity assumed, and
 contracts made on face-to-face basis

i. Contracts made by written agreement (inter absentes)

Where the parties make a contract via written correspondence (e.g. by post, fax, e-mail), there is a strong
presumption of law that the innocent party intended to deal with the named party in the document. The
general rule is that where the parties contract only deal in written documentation, a contract can only be
between the persons named in a written contract as the parties to the contract, in such a case the only
mistake that can occur is mistake as to identity which can make the contract void.

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Shogan Finance v Hudson (2003)

A rogue, giving a false name and address, completed hire-purchase forms to buy a car and showed a stolen
driving licence in the name of Durlabh Patel to confirm his identity. The car dealer faxed a copy of the
licence and draft hire-purchase agreement, signed by the rogue in Mr Patel’s name, to the claimant finance
company. The finance company checked Mr Patel’s address and credit rating and then agreed to buy the
car from the dealer and sell it to Mr Patel on hire purchase terms. The rogue paid a 10 percent deposit and
drove the car away. Shortly afterwards, he sold it to the defendant (Mr Hudson) an innocent purchaser in
good faith, and disappeared. The claimant finance company later found out about the fraud and traced the
car to Mr Hudson and sued him for the recovery of the car, or its value. Shogun argued that the agreement
was void for mistake because they had intended to contract not with the fraudster, but with Durlabh Patel.
In order to decide the issue, the court ruled that they had to focus on the written agreement and determine
whether, in light of the written agreement, interpreted and applying the objective principle, the contract
was void.
Held: the court found that there was no agreement between Shogun Finance and the fraudster or the
finance company and the real Mr Durlabh Patel. The offer of finance arrangement was made to Durlabh
Patel, who knew nothing of the offer and did not therefore authorise any acceptance. The contract
between the claimant finance company and the fraudster customer was void for unilateral mistake.
Accordingly, the delivery of the vehicle to the fraudster was not a delivery under a valid hire purchase
agreement and title to the car remained with the finance company. The claimant was entitled to recover
the car from the defendant.
Comment: The car dealers in the Shogun case were not agents for the claimant but intermediaries. If the
car dealer had been an agent of the claimant then the contract would have been face-to-face transaction,
and the outcome of the case would have been different.

Cundy v Lindsay (1878): The contract was void for mistake. The claimant was able to show that the
identity of the party was fundamental to the contract, in that they intended to trade with the respectable
firm – Blenkiron & Co. Blenkarn was a different entity.
Blenkarn, a rogue, hired a room at 37 Wood Street, which was located close to a highly respectable firm
known as Blenkiron & Co, conducted its business at number 123. Blenkarn ordered some handkerchiefs
from Lindsay, with a signature designed to be confused with that of the reputable firm, Blenkiron. The
goods were supplied and billed in the name Blenkiron. The goods were never paid for and were sold to a
third party, Cundy, before the fraud was discovered. Lindsay then tried to recover the goods from Cundy.
Held: There was no contract between Lindsay and the rogue. The contract was void for mistake because the
claimants were mistaken as to the identity of the person with whom they were dealing. Lindsay’s were able
to show that the identity of the party trading from 37 Wood Street was material to the formation of the
contract.

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 ii. Contracts made in written by non-existence of the identity assumed

It should be noted that not every mistake concerning the identity of the other party to a written contract
will make the contract void. A contract cannot be void for mistaken identity unless there is confusion
between the two distinct entities or persons. Here the central question is: when can the courts look beyond
the written agreement? The courts can look beyond the written agreement where a fraudster used a non-
existing identity or simple alias to disguise his/her identity as was the case in Kings Norton Metal Co Ltd v
Edridge, Merrett & Co Ltd (1897).

The claimants received a written order from Hallam & Co. It was a company they had not heard of, but the
letterhead described Hallam & Co as a large firm. In fact, no such company existed as the impressive looking
Hallam & Co was a fictitious and creation or rather an alias for a fraudster named Wallis. The fraudster,
Wallis, received goods from the claimants on credit and sold them on to the defendants who bought them
in good faith. The claimants attempted to recover the goods from the defendant on the grounds that the
contract between them and Hallam & Co was void for mistake.
Held: The claimants had not made a mistake as to identity because they had intended to contract with the
writer of the letter because they could not identify a distinct existing company called Hallum & Co with
whom they intended to contract. Wallis and Hallam & Co were, in fact, the same person or entity. The
contract was voidable for fraud, but since the defendant had purchased the goods in good faith, before the
claimants had avoided the contract that would not stop title passing to the fraudster (Wallis) and the
defendants therefore acquired good title from him.

iii. Contracts made in a face-to-face (inter praesentes)

The general rule is that when parties enter into a contract on face-to-face basis there is a strong
presumption that each party intended to contract with the other person physically present, not the person
the rogue is claiming to be. Therefore only mistake that can occur is mistake as to attributes, which can
make the contract voidable. This rule is supported by the reason that under face-to-face transactions, the
seller is prepared to give credit to the buyer in the belief that he or she is someone who is creditworthy. The
rules associated with face-to-face transactions may also apply where the contract is made by the claimant’s
agent. This is because an agent binds his principal to a contract. On the contrary, if the contract is made
only through a mere intermediary, lacking the authority to bind the principal, then the general principles of
mistaken identity will still apply.

Phillips v Brooks (19 19) : claimant intended to deal with the person in front of him – the mistake
related to attributes. The jeweller would have transacted with any customer in his shop
A fraudster named North purchased jewellery in a shop and wrote a cheque misrepresenting himself as Sir
George Bullough. After finding Sir George Bullough’s address in the directory, the jeweller agreed that he
could take the ring and collect the rest of the jewellery when the cheque cleared. The cheque bounced. The
jeweller found the ring in a pawn shop, and attempted to recover it from the pawn broker on the grounds
that the contract between North and the jeweller was void for mistake.

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Held: The jeweller had intended to contract with the person in front of him, who was North, a rogue. The
contract was not void for mistake but voidable and the pawn broker obtained good title to the ring as he
had purchased it in good faith.
Other key case: Lewis v Averay [1971] Contract not void – claimant intended to deal with the person
in front of him – the mistake related to attributes.

(III) Unilateral Mistake in Relation to Signed Documents

A unilateral mistake concerning signed document can occur where one party is mistaken as to the true
nature of the signed document, and the other party is aware or where a written contract does not reflect
with the parties’ original intentions and the other party is aware of it. In the interest of commercial
convenience and certainty, the general rule is that a person who signs a contractual document is bound by
it, regardless of whether or not they have read or understood the contents of the document in question.
However, there are exceptions to the signature rule if an innocent party has been induced to sign under a
misrepresentation or some unfair pressure, then the contract will be voidable. In addition, the following two
remedies are available:

• the plea of non est factum (literally means ‘not my deed’)

• rectification

(a) Non est factum (not my deed)

This is a common law remedy that renders a contract void where one party can prove that did not
understand the true nature (character) or contents of the document signed, and had taken all reasonable
care. In practice, this remedy dictates that the party must show some reason why they completely
misunderstood the character of the transaction, which can be attributed to factors such as illness, or
illiteracy. Therefore it is not enough to show that you were too busy or lazy to read through the document.
The plea of non est factum is available in very limited circumstances and the person seeking to rely on it
must prove factors:

 that he or she was permanently or temporarily unable through no fault of his/her own to have
any real understanding of the document he/she has signed whether as a result of illiteracy,
illness or innate incapacity’, or from being tricked.
 must show that there was a real or substantial difference between the document which he/she
signed and the document which he believed he/she was signing
 he/she was not careless in signing the document .This means that person who claimant who is
relevantly disadvantaged must still take such reasonable care as expected of him

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The plea of non est factum was successful in Lloyds Bank v Waterhouse (1 990)
A father who could not read or write signed an agreement as guarantor for his son, thinking that it was for
the purchase of a farm. In fact, it was also an agreement to be responsible for all of the son’s previous
debts.
Held: It was established that the father would not have signed the agreement if he had known the true
nature of it, and he had taken steps to ask the bank for information. The plea of non est factum was upheld
by the Court of Appeal on this occasion.
In contrast, the plea of non est factum was not successful in Saunders v Anglia Building Society
(Gallie v Lee) (1970) , where nature of the document was not fundamentally different from what the
affected party intended to sign.
Mrs Gallie aged 78 signed a document without reading it as her reading glasses were broken. She had been
told by Lee it was a deed of gift of her house to her nephew, when in fact it was a deed assigning the house
to Lee for £3,000. Lee mortgaged the house to the building society but did not repay the instalments due.
The building society sought possession of the house and Mrs Gallie sought to have the assignment set aside
on the basis of non est factum. By the time the case reached the House of Lords, Mrs Gallie had died but
her executor continued the action against the building society.
Held: There was no fundamental mistake as to the nature of the document that Mrs Gallie had signed and
the one she thought she had signed. Both were documents transferring ownership of the house. In addition,
she had not taken sufficient care in signing the document. She should have waited until her glasses were
repaired or asked someone to read the document to her.

b) Rectification
Where a particular part of a written document is alleged not to accurately reflect the intention of the
parties, the courts may allow a rectification order it to be amended so that so that it reflects more
accurately the parties’ previous oral agreement. This remedy is only applies in situations where the parties
were in complete agreement on the terms of the contract but wrote them down wrongly by an error.

The requirements and application of the remedy of rectification is illustrated in a recent case of Daventry
District Counci l v Daventry Di strict Housing Limited (2012).

Daventry District Council (C) had agreed to transfer housing and staff to Daventry & District Housing Ltd (H).
The staff pension scheme had a deficit of approximately £2.4 m and the parties initially negotiated for H to
pay the 2.4 m. In error, one e-mail stated that C would pay the £2.4 m and this is what was written in the
contract. H’s lead negotiator realised there was a misunderstanding between C and H but chose to keep
quiet. In allowing the contract to be rectified to reflect the original intention the court was persuaded by
the fact that H’s negotiator had failed to point out the error to H.

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