SOME REFLECTIONS ON THE LOGICAL BASIS OF MISTAKE OF IDENTITY OF PARTY

Abstract

In this article the author examines the prevailing “subjective theory” of mistake of identity in the making of a contract, which derives its appeal from the impossibility of applying a normal objective test in assessing the validity of an “apparent contract” between parties. The author concludes that the idea of an apparent contract is itself ambiguous, and that a subjective approach to the identification of parties is rooted in logical confusion. Though there may be limited circumstances justifying limits on the existing quasi-consensual system, these limits can be defined without abandoning the use of an objective approach to the identification issue.