Free Consent

Consent and Mistake

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Mistake

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Mistake : Consent and Free Consent
• 13. "Consent" defined

• Two or more persons are said to consent when they agree upon the
same thing in the same sense.
• Consensus ad idem

• Mistake of Fact and Mistake of Law

• Bilateral and Unilateral Mistake

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 Mistake

Law Fact

Bilateral Unilateral

Mistake as to Mistake as to
As to Person As to Nature
Subject Matter Possibility

Existence Identity Physical Legal

Quality Quantity

Title Price

Indian Law Foreign Law

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20. Agreement void where both parties are
under mistake as to matter of fact
• Where both the parties to an agreement are under a mistake as to a matter of fact essential to the
agreement, the agreement is void.
• Explanation: An erroneous opinion as to the value of the things which forms the subject-matter of the
agreement, is not be deemed a mistake as to a matter of fact.

• Illustrations
• (a) A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It
turns out that, before the day of the bargain in the ship conveying the cargo had been cast away and the
goods lost. Neither party was aware of these facts. The agreement is void.
• (b) A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of bargain,
though neither party was aware of the fact. The agreement is void.
• (c) A, being entitled to an estate of the life of B, agrees to sell it to C, B was dead at the time of the
agreement, but both parties were ignorant of the fact. The agreement is void.
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21. Effect of mistakes as to law.
• A contract is not voidable because it was caused by a mistake as to
any law in force in [India]; but a mistake as to a law not in force in
[India] has the same effect as a mistake of fact.

• Illustration
• A and B make a contract grounded on the erroneous belief that a
particular debt is barred by the Indian Law of Limitation: the contract
is not voidable.
• Ignorania Juris non excusat

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22. Contract caused by mistake of one party
as to matter of fact.
• A contract is not voidable merely because it was caused by one of the
parties to it being under a mistake as to a matter of fact.

• Exceptions:
• mistake by one party as to nature of contract
• mistake of one party as to identity of the parties to the agreement

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 Mistake

Law Fact

Bilateral Unilateral

Mistake as to Mistake as to
As to Person As to Nature
Subject Matter Possibility

Existence Identity Physical Legal

Quality Quantity

Title Price

Indian Law Foreign Law

8
Consent and Mistake : Sec 13 & 20
• Raffles v Wichelhaus (1864) 2 H&C 906—the Peerless Case.
• Haji Abdul Rehman Allarakhia v The Bombay & Persia Steam
Navigation Co (1892) 16 Bom 561 – the Hajj Case
• Boulton v Jones (1857) 27 LJ Ex 117. – Take-over case
• Cundy v Lindsay (1878) 3 App Cas 459. –Handkerchief Case
• Phillips v Brooks Ltd (1919) 2 KB 243. –Diamond ring case
• Ingram v Little (1961) 1 QB 31. –Three ladies and a car
• Couturier v Hastie (1856) 5 HL Cas 673. –Corn Case
• Smith v Hughes (1871) LR 6 QB 597. –Quality of oats
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