WHAT LAW IS APPLICABLE Some cases have continued to follow Solle v Butcher and

What law is applicable some cases have continued to

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WHAT LAW IS APPLICABLE? Some cases have continued to follow Solle v Butcher and others have followed Great Peace Shipping v Tsavliris Salvage . Mistake in recording the agreement Both parties agreed X and the written agreement states Y The contract is valid at common law There is an equitable remedy of rectification and will be granted if: The contract intended to be in writing Document did not accurately reflect the intention of the parties Both parties were mistaken. Because it is an equitable remedy, it is discretionary. Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Mutual Mistake Parties are at cross purposes – no agreement. Contract is void at common law.
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Raffles v Wichelhaus (1864) 159 ER 75 Parties agreed to delivery of bales of cotton to arrive on the Fearless ship from Bombay There were actually two ships called fearless travelling from Bombay One party thought it was the Fearless leaving in October The other party thought it was leaving on the Fearless ship leaving in December The goods were sent in December but they were refused The contract was deemed invalid as there was no consensus - no genuine meeting of the minds. Scriven Bros & Co v Hindley & Co [1913] 3 KB 564 Unilateral Mistake Only one party is mistaken Contract is valid at common law (caveat emptor) 'buyer beware' But contract may be voidable in equity if the party who is not mistaken knew or should have known that the former was mistaken Special rules Mistake as to terms Mistake as to identity o Face to face o Not face to face Mistakenly signed document Mistake as to terms Taylor v Johnson (1983) 151 CLR 422, 432 (Mason ACJ, Murphy & Deane JJ): ‘A party who has entered into a contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.’ Mrs Johnson entered into a contract for the sale of land at a total price of $15,000 Mrs Johnson thought she had agreed to $15,000 per acre which would have made the price $150,000 Mr Taylor were well aware that Mrs Johnson was under this mistake but they said nothing. Mr Taylor deliberately didn’t mention the issue/price When Mrs Johnson requested a copy of the contract, Mr Taylor said he didn’t have it When Mrs Johnson foud out about the mistake, she refused to go
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ahead with the sale.
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