The Effect of a Common Mistake in Contract

The Effect of a Common Mistake in Contract

To say Kikelomo Ijeoma Adams (KIA) was very elated won’t be a mistake. The day she had been awaiting all along was gradually drawing closer. Her joy knew no bound that her fantasy would become a reality.
Mere words can’t give a perfect description of how much she had dreamt about this adventurous day. Her friends whom she had boasted to about how glamorous the event would be were also eagerly awaiting this special day – her wedding day.
Being a diligent ‘student’ of Bella Naija, she had a mental picture of how eventful her wedding ceremony would be. The voluptuous bridal shower where she would be in the company of her closest female friends as she is ushered out of the Bachelorette Circle at the NICON Grand Hotel.
Her traditional engagement where she would put up the mature dressing of ‘orente’ with her outlandish Iro and Buba while dancing joyfully in the adorning atmosphere her cultural heritage creates.
She could only imagine how ravishing and colourful her white wedding would be when she walks romantically down the aisle with her prince charming, Bernard Mokunfope Williams (BMW) holding her hands dearly in his ever amorous nature.
She could remember she had ordered the full very wedding gown she saw on the instagram page of @s_stylestar, an international fashion outlet owned by her friend, Blessing Okoroma and could picture how gorgeous she would look in the snowish gown.
24th of June, 2017 was this special day. In fact, everything in her head rang 24th of June, 2017 and she couldn’t just wait for this day to come around. The thoughts of how her sophisticated bridal train would march gleefully in front of her with their enchanting smiles while showering her with garish flowers as they enter the Lord’s holy temple filled her mind.
On the 23th of June, 2017, her make-up artiste, Victoria Mcqueen Peters who just launched her instagram page @vmp_signatures requested to see Kikelomo’s gown when everyone suddenly discovered that the gown had mysteriously vanished.
Weeping profusely, Kikelomo called her fiance, Bernard to relay the sad news to him. Despite the shock, Bernard summoned courage and immediately ordered another wedding gown that night from Choice Exclusive Fashion Company on the basis of urgency.
Unknown to him that their boutique which housed the gown had been destroyed by fire about an hour before the transaction, the manager of the fashion company promised it would arrive on the morning of the wedding before the service.
Bernard agreed and had no reason to doubt them because it is a company of repute; some others have taken such risk without the company disappointing and theirs should be an exception.
Just ten (10) minutes to the wedding, the Manager of Choice Exclusive Fashion Company called to inform Bernard and Kikelomo to whom the gown was to be delivered that they lost the gown in a fire accident the previous night. Bernard has been so furious and has threatened to sue the Choice Exclusive Fashion Company.


Points to Note:
1. In law, one of the elements of a valid contract is consensus ad idem (meeting of the minds) between parties that enter into a contract.
2. This means that both parties were thinking about the same thing when they entered into the contract. In essence, a party that enters into a contract on a mistaken assumption of some fundamental facts can claim that the consensus ad idem is lost. Such a contract is void.
3. For a mistake to affect the validity of a contract it must be an “operative mistake”, i.e, a mistake which operates to make the contract void. The effect of such mistake is that the contract is usually void ab initio, i.e, from the beginning. Therefore, no property will pass under it and no obligations can arise under it.
4. Note that not all obvious misunderstanding of the contract by either party can be regarded as a mistake. Mistake in the law of contract only applies to fundamental facts that go to the root of the contract.
5. As Lord Atkin puts it in the case of Bells v Lever Bros, “If mistake operates at all, it operates so as to negate or in some cases, nullify consent”.
6. Note also that even if the contract is valid at common law, in equity the contract may be voidable on the ground of mistake. Property will pass and obligations will arise unless or until the contract is avoided by the aggrieved party. However, such party may lose the right to rescind the contract.
7. Mistake is is generally divided into three categories as follows:
(i) Common Mistake
(ii) Mutual Mistake
(iii) Unilateral Mistake
8. A common mistake is one when both parties make the same error relating to a fundamental fact. The cases may be categorised as follows:
(i) Res Extincta – A contract will be void at common law if the subject matter of the agreement is, in fact, non-existent at the time the contract was made.
(ii) Res Sua – Where a person makes a contract to purchase that which, in fact, belongs to him, the contract is void.
(iii) Mistake as to Quality – According to Lord Atkin: “A mistake will not affect assent unless it is the mistake of both parties, and is as to the existence of some quality which makes the thing without the quality essentially different from the thing as it was believed to be.”
9. It is important to state that there are remedies to mistake. The Court, in case of a contract that is void for common mistake, may:
(i) Refuse specific performance
(ii) Rescind any contractual document between the parties
(iii) Impose terms between the parties, in order to do justice.
10. Note, however, that there seem to be no hard and fast rule to mistake because the court in his equitable and benevolent nature may reach a decision that is fair to both parties in the interest of justice.

Sequel to the foregoing, I am minded to think that the contract between Choice Exclusive Fashion Company and Bernard Mokunfope Williams (BMW) is void for common mistake- Res Extincta. This is because, at the time they both entered into the contract, the subject matter of the contract (wedding gown) was no longer in existence. In short, they contracted on nothing! In sensitive cases like this, it is the practice of the Court to impose terms that will ensue justice between the parties.
What would you have done?
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede

Joseph Ogunmodede
Founder, THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede is a budding lawyer and founder of Nigerian-based innovative network known as THE LEGAL DIARY, an online platform for educating people on their legal rights and duties which is a unique idea that meets the pressing need for public enlightenment in Nigeria.
Since the evolution of THE LEGAL DIARY in January, 2017, he has consistently updated his audience with various legal stories and legal opinions posted on a weekly basis. He has also offered several pieces of advice and legal opinions to a number of clients both online and physically.
He was born in Ogun State, Nigeria, and holds Bachelor of Laws (LL.B) Degree from the prestigious University of Ibadan, Ibadan, Oyo State where he was awarded a First Class (Honours). He is currently an Intern at B. O. Ogunmodede & Co, Abeokuta, Ogun State.

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