The following Commercial practice note provides comprehensive and up to date legal information covering:
This Practice Note considers the legal concept of mistake in contract law. It examines common mistake, mutual mistake, unilateral mistake, mistake as to identity and mistake as to the document signed (non est factum). It also considers the impact of each of these types of mistake on the contract and the correction of mistakes by rectification or construction.
A mistake is an erroneous belief held by one or both parties to a contract at the time of its formation. A mistake may arise as to the:
subject matter or terms of the contract
identity of the other party
nature of the transaction
Mistake should not be confused with a misrepresentation where a party is induced to enter into a contract on the basis of a misrepresentation, whether innocent, negligent or fraudulent. For more details, see Practice Note: Pre-contractual representations and statements.
There are three types of mistake of fact:
common mistake—both parties make the same mistake
mutual mistake—each party makes a different mistake, and
unilateral mistake—only one party makes the mistake and the other party is aware of the mistake
For discussion on the terminology used in respect of the different types of mistake, see: The categories and terminology of mistake: Contract: The Law of Contract (Common Law Series) [4.79].
Common mistake is a common law doctrine that applies where parties enter into
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The Financial Conduct Authority Handbook (FCA Handbook) includes sourcebooks to regulate the conduct of business by a regulated firm relevant to insurers: the Conduct of Business Sourcebook (COBS) and the Insurance Conduct of Business Sourcebook (ICOBS). This Practice Note considers how these
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