From old oats to a new gearbox - the limitations of the doctrine of mistake

Jeanette Ashton

Research output: Contribution to journalArticlepeer-review


Whilst mistake is a key feature of a Law of Contract syllabus and likely to feature in an examination paper, whether or not English law actually has an independent doctrine of mistake is debatable, with some taking the view that it is the application of more defined principles such as those of offer and acceptance which can result in a contract being set aside rather than a separate doctrine of mistake.i An alternative view however and one which textbooks and lecturers tend to take, is that even though the ‘doctrine’ is far from clear-cut, it is possible to identify certain principles relating to mistake. An operative mistake usually results in a contract being void i.e. there has never been a contract and it is felt that because of this the approach of the courts to the doctrine is extremely restrictive. It is important to note that in line with most areas of contract law, the test of agreement is objective as set out by Blackburn J in Smith v Hughes ii, the old oats, new oats case: “If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.” There are many situations where a mistake, albeit one which would seem to an ordinary person sufficiently serious to negate agreement, will not be considered so in law and it is likely that this is the reason for it being rarely pleaded. Mistake cases rarely feature in legal updates and it is therefore interesting to consider the recent judgment handed down by the High Court in Dany Lions Limited v Bristol Cars iii. This article briefly examines the principles relating to common mistake and moves on to consider the recent judgment and whether this has any implications for the future development of the doctrine.
Original languageEnglish
Pages (from-to)22-23
Number of pages2
JournalStudent Law Review
Publication statusPublished - 26 Mar 2014


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