Critically evaluate the following statements: The supposed distinction between a mistake as

to ‘identity’ and a mistake as to ‘attributes’ is impossible to apply.

Mistake negating an agreement occurs where it is impossible to identify the agreement that the
parties have made. This mistake basically relates to contract Formation. One of the kind of
errors in this category is “mistake as to identity”.
Mistake as to identity i s often caused by misleading statements and in such instances the
question often arises whether the agreement has not been established since the beginning due to
mistaken identity or was simply invalid because of fraudulent misrepresentation.
Because the contract is null due to mistake as to identity generated by a faulty false declaration, a
complainant intending to escape a contract was expected to meet the following requirements
until recently:
(a) He planned to engage with someone who did not represent his identity with the rogue
(fraudulent trickster).
(b) A's error was known to the rogue.
(c) A reasonable step was taken by the claimant to authenticate the identity of the rogue.
(d) Contract identity was essential.

Instead of the claimants thinking that the rogue possessed such honestness, social rank or
solvency (King's Norton Metal Co.) the error was related to the rogue's identification. The
intrinsic problem of this technique was to distinguish the distinction between the traits and
identity of a person, a process that for academics, however, provided practitioners little clarity
about the application of law.
The courts created a difference between written (distance) communication contracts and face-to-
face verbal/oral contracts. The House of Lords decided in Cundy v Lindsay (1878) that if a
contract was written, identification is vital. There was, however, an additional condition that the
identification was considered vital to the contract in Edridge, Merrett and C. (1897) in King's
Norton Metal Co Ltd, which had to be an error in connection with an existing individual and an
offer could not be regarded as an inexistent person.
It was usually assumed that the identification was not decisive for the contract choice in the
contracts conducted face-to-face. Philips v Brooks Ltd. (1919) and Lewis v Averay are
referenced as sources in two instances to this result (1972).
In face-to-face cases, the courts often ruled, because the parties were presumed to handle the
individual in question, that the contract was not invalidated because of identification errors. A
fraudulent error was therefore only invalid of the contract for misrepresentation (Distinguish
between a void contract and a voidable contract).
Traditionally, a recognized exception to this stance has been established with respect to face-to-
face contracts in which the identification is critical to a specific firm and the contractual aim of a
so called "bogus official" is to be made on behalf of a person who does not have such
authorization to act (Hardman v Booth 1863).
Having no intention of paying for the products at the time of their purchase from the original
owner, the defaulting client is generally a rogue or thief. In the normal circumstance, the items
would have been transferred by the rogue to the property of the third party by the time the owner
finds the real situation. In such circumstances, the original seller would likely seek on account of
the fact that he retains the owner of the item and is allowed, to make a claim against the third
party who possesses the items.
The broad notion of nema dat quod non habet is recognized by English law (you cannot give
what you do not have). This regulation has the consequence of requiring a review of the rights
that the rogue obtained during the first seller transaction. Where this contract validly transfers the
property of the goods of the rogue to the rogue, the rogue, in turn, can transfer ownership rights
to the third party, but if the original contract is void due to an error then the rogue is not able to
confer ownership rights of the third party – S 21(1) of SOGA 1979 states this principle.
Shogun Finance Ltd. v. Hudson: It is vital to distinguish between written and face-to-face
contracts when assessing whether or not identification error is null and void. In face-to-face
transactions between the parties the courts often stated that the rogue is identified by 'sight and
hearing' and thus the law assumes that each part in a transaction intended to trade with the person
before him. The names of parties to the contract, on the other hand, take on greater weight in
written contracts. There are two explanations:
The first reason is that written contracts require certainty. In general the law does not allow oral
testimony to be conducted to contradict one of the provisions of a written contract - the parole
evidence rule – according to Lord Hobhouse in Shogun Finance. However, on the grounds that
the parole evidence rule is itself vulnerable to a variety of exceptions, the following thesis might
be criticized. In Shogun Finance, Lord Nicholls also remarked that 'the untruth produced in
writing is not linked with the magic of words.'
The second reason for this is that, unlike a contract formed verbally during a face-to-face
transaction, judges are more inclined to conclude that a party has made an identification error in
a written agreement. In Shogun's Finance, according to Lord Philips, this is because, in a face-to-
face transaction, 'individuals will remember the person they are in contact with as well as the
third party that they believe they are' when assessing who they are dealing with. However, in the
event of a written agreement the same difficulty does not generally occur, as in those
circumstances the tasks of the court are to establish from the written instrument itself the identity
and the intention of the parties.