AN APPROACH TO COMMON MISTAKE IN ENGLISH LAW

Abstract

This article provides an analysis of the operation and juridicial basis of the doctrine of common mistake. The author contends that while there are various forms of contractual mistake, the doctrine of common mistake should be limited so as to refer to a situation where the parties share the same erroneous belief, where that mistake places the parties at cross-purposes. The author also notes that it is important to distinguish between common mistake and a foolish bargain, and suggests that the principle of “conscious ignorance” is the preferred approach to determining whether the risk of a mistake is within the scope of promissory expectations.