ROGUES, SWINDLERS AND CHEATS: THE DEVELOPMENT OF MISTAKE OF IDENTITY IN ENGLISH CONTRACT LAW

Extract

THERE are few more vexed areas of contract law than that of a mistake as to the identity of a contracting party. The case law is difficult to reconcile. Judges and jurists disagree as to the effect of a mistake of identity upon the formation of a contract. This disagreement extends beyond discordance as to the operative principles to the very existence of the doctrine. That the issues are of current concern can be seen in the recent decision in Shogun Finance v. Hudson. This article examines how and why such a situation arose through an examination of the historical development of the doctrine. The thesis of this article is that the meaning of the early cases is obscured when they are viewed solely from a contractual perspective. The participants in these cases were also concerned with issues of criminal law and tort law. As these concerns disappeared from the law the meaning of the early cases was obscured and the cases have ceased to make sense. The article concludes with two sets of observations: first, what can be concluded, as a matter of legal history, from the development of this doctrine; secondly, how the modern law of mistake as to identity should regard these early cases.