Mistaken Identity in the Law of Contract: Whither the Position of the Law
Edwin Obimma Ezike*
Abstract
This paper examines the intractable controversies surrounding mistaken identity in the law of contract and suggests ways of solving the problem. As the doctrine is purely common law, the relevant case laws and legislation were examined. It was found that there are conflicting decisions on the subject with the House of Lords taking two diametrically opposed positions in different cases. It was also discovered that there are no Nigerian cases on the subject. The local statutory provision that was examined – the Enugu State Contract’s Law, 2004 only codified the position in Cundy v Lindsay – that once there is a mistake as to identity the contract is void. This position has received sharp criticisms by modern learned authors as being detrimental to the innocent third purchaser for value without notice. The implication of these findings is that the law on the subject is still in a state of flux which leaves the parties to a contract more confused should there be a mistake as to identity. The paper seriously advocates for a harmonization of the law on mistaken identity and suggests that in cases of mistaken identity involving the innocent third purchaser for value without notice of the fraud, the contract should be voidable not void.
1. Introduction
For over two decades of teaching the law of contract, few areas of the course contents have been known to raise heated arguments in class and top of the few list has always been mistaken identity under the unilateral mistake topic. This is not surprising. The cases are difficult to reconcile and authors of learned texts are not agreed as to the scope of the operative principles. More so, some renowned judges and jurists have been known to dispute the very existence of the doctrine.[1]
It has not helped matters that the Nigerian courts are yet to pronounce on the issue of Mistaken Identity.[2] Thus, in teaching Mistaken Identity, recourse is had entirely to English cases and English learned commentators, so that the pronouncement of English judges on the point continue to be of utmost relevance to the doctrine in Nigeria and making it imperative that learned scholars and legal practitioners in Nigeria are not immune from the controversy bedeviling the doctrine.
Regrettably, little or no effort have been made by Nigerian learned commentators in the area despite much activity over the years, resulting in a legion of learned treatises on the doctrine in common law jurisdictions.[3] Consequently, Nigerian students of contract law may not be updated on the position of the law as regards mistake of identity in contracts, hence this article; made more necessary, considering the more recent decision of the House of Lords in Shogun Finance Ltd v Hudson[4] and the controversy generated among learned commentators in this area of law in recent times.
2. Statement of the Problem
Perhaps, the enduring delight of the doctrine among students stems from the thriller cases from which the doctrine emanates. The facts of the cases read like Hollywood flicks peopled by rogues and fraudsters, plying their trade by means of fantastic, ingenious displays.[5]
Usually, a rogue makes a seller of goods believe he is someone else in order to induce him to part with his goods either on credit or with a dishonourable cheque. The rogue then sells to an innocent third party and then disappears. By the time the seller seeks to recover his goods, they are in the hands of an innocent third party who purchased for value without notice of the fraud committed by the rogue and meanwhile the rogue is nowhere to be found.
The seller will then bring an action in court to recover his goods or the value of the goods from the innocent third party. Here then lies the controversy: who among the two innocent parties is entitled to the protection of the court. Should the seller be made to part with his goods which have not been paid for or should the innocent purchaser lose his investment? The question is invariably who will bear the loss brought upon by the rogue’s fraud.
In determining the above question, the court has to determine firstly, whether the seller’s mistake had the effect of preventing the coming into being of a valid contract between the seller and the rogue or whether the mistake merely entitled the seller to rescind an otherwise valid contract[6] i.e. is the contract between the seller and the rogue void or voidable? The determination of the question is vital because if the contract is void, no property in the goods passes to the rogue and thus under the nemo dat quod non habet rule, the rogue cannot pass a valid title to an innocent third party because the rogue cannot give what he does not have. However, where the contract between the seller and the rogue is merely voidable, the seller will only be capable of recovering the goods from the rogue and not an intervening third party who buys for value without notice.[7]
However, the matter is not as simple as may be thought by merely declaring the contract void or voidable. The courts have often shown little consistency of approach in this regard and the cases are woefully irreconcilable despite attempts to streamline them by use of meaningless fine distinctions as shall soon be seen.
3. Mistaken Identity- Scope
The gist of mistake as to the person is that the mistaken party intended to contract with a person other than the party with which he purportedly dealt (contracted).[8] Thus, the identity of the person contracted with is crucial to the extent that it must be determined that could the contracting party have known the true identity of the other party, he would not have contracted with him. And that this fact was known to the party purportedly contracted with[9] or that ab initio the party intended or thought he was contracting with someone else.[10]
The above is contrasted with the position where in the ordinary course of business a party to a contract does not care with whom he enters into a contract, an example being a shopkeeper who sells goods to customers and is paid cash, etc. In Boulton v Jones,[11] Jones ordered some goods from one Brocklehurst, against whom he had a set-off which he had wanted to enforce against him. Boulton had just taken over the business from Brocklehurst when the order arrived, and he supplied the goods to Jones without disclosing to the latter that the business had changed hands. Jones consumed the goods and when he received Boulton’s account refused to pay for them on the ground that he had intended to contract with Brocklehurst against whom he had a set-off. He had intended to set this debt off against it and could not avail himself of the set-off against Boulton. Boulton sued Jones for the price of the goods. The court entered judgment for the defendant, holding that the plaintiff could not accept an offer that was not addressed to him.
Chitty surmises that the question is not merely: “With whom did the offeror intend to contract?”[12] But also: “How would the offer have been understood by a reasonable man in the position of the offeree?”[13] Thus where the facts indicate that the offeree would reasonably believe that the offer was meant for him, the offeror would be bound, notwithstanding the fact that he meant the offer for someone else.[14]
Another important dimension is that the mistake conceived by law is mistake as to the identity of the party with whom the contract is made and not mistake as to the attribute or quality of the person. Thus it is immaterial that the contracting party did not know that the other party is a thief or declared bankrupt or person of loose morals etc.
In Cundy v Lindsay,[15]Blenkarn placed an order in writing for a number of handkerchiefs and signed the order so that it appeared to emanate from Blenkiron & Co., a respectable firm. Upon delivery, Blenkarn sold the goods to a bonafide purchaser, Cundy. When Blenkarn could not be found, Lindsay brought a claim based on conversion against Cundy. The issue was whether the plaintiff had the requisite title to sustain an action in conversion. The House of Lords held that the plaintiffs had retained title to the handkerchiefs, as there was no contract, pursuant to which that title had ever passed to the rogue. The court stated:
Now, my Lords, stating the matter shortly in that way, I ask a question, how is it possible to imagine that in the state of things any contract could have arisen between [Lindsay]and Blenkarn, the dishonest man? Of him they knew nothing, and of him they never thought. With him they never intended to deal. Their minds never, even for an instant of time rested upon him, and as between him and them there was no consensus of mind which could lead to any agreement or any contract whatever.[16]
As the court found that the contract between the plaintiffs and Blenkarn was void for mistake, no property in the goods had passed under the contract, and the plaintiffs were entitled to recover them. But if the contract was valid, the contract would merely have been voidable for fraud, and the defendant would have had a good title.
Cundy v Lindsay, [17] however, is contrasted with King’s Norton Metal Co. v Edridge, Merret & Co. Ltd[18] where a certain Wallis who had ordered goods from the plaintiff, under the alias of Hallam & Co. sold the goods to an innocent third party without paying the plaintiff. The Court of Appeal held that the plaintiffs had intended to contract with the writer of the letter, although they had invested him with the attributes of solvency and respectability. Chitty notes that had there been a separate entity from the rogue, known as Hallam & Co. the case might have been within Cundy v Lindsay.[19] Thus, the plaintiffs had not been mistaken as to the identity of the person they intended to contract with. They were only mistaken as to the person’s ability to pay- creditworthiness.
In Lake v Simmons[20] a woman called Esme Ellison told the plaintiff that she was married to one Van der Borgh (with whom she was in fact living as his mistress); and that he wanted to buy her a necklace which he wished to see on approval. The plaintiff let her have possession of the necklace and entered it in his book as being out on approval to Van der Borgh. Esme Ellison absconded with the necklace, and the actual decision was that the plaintiff had not ‘entrusted’ the necklace to her as a ‘customer’ within the terms of an insurance policy. Lord Haldane also said that there was no contract, since there was no consensus. The plaintiff “thought that he was dealing with a different person, the wife of Van der Borgh …. He never intended to contract with the woman in question.”[21] “Nothing short of a belief in her identity as a wife who was transacting for her husband as the real customer would have induced the [plaintiff] to act as he did.”[22]
The above case shows the difficulty in distilling a fine line dividing mistake as to the identity of the person and mistake as to the attributes, quality of the person. One would think that the identity of Esme Ellison in this case was not in issue. Her being the wife of Van der Borgh was, it is submitted with respect, to her attribute. It is further submitted that the fact that the decision would determine if the plaintiff would be entitled to insurance protection must have swayed the court to hold that the mistake was to identity instead of to her attribute.
Treitel,[23] rationalizing the decision wonders whether the court may have considered Esme Ellison’s ‘identity as a wife’ as having induced a mistake as to the capacity in which she dealt. This may have then resulted in the plaintiff purportedly dealing with her as agent for Van der Borgh, while she intended to contract (if at all) in her own behalf.[24] On the other hand, the court may have also considered the plaintiff’s mistake to be one, of the identity of Esme Ellison, the plaintiff having identified her as the wife of Van der Borgh and not by the more usual process of sight and hearing.[25]
4. The ‘Inter Praesentes’ versus ‘Inter Absentes’ Dichotomy
In determining whether there was a mistake as to the identity of the person, the courts have devised a theory traceable from Cundy v Lindsay[26] where the existence of a contract between the plaintiff and the rogue would depend on whether they had dealt with each other face-to-face (inter praesentes) or whether they had dealt with each other by correspondence (inter absentes). In face-to-face dealings the offeror would be taken to have prima-facie intended to deal (contract) with the person in front of him, and with no other.
In Phillips v Brooks[27] a man called North entered the plaintiff’s shop and selected pearls of the value of 2,550 pounds and a ring worth 450 pounds. He then wrote out a cheque for 3,000 pounds saying as he did so: “You see who I am; I am Sir George Bullough,” and then gave an address in St. James’ Square. The plaintiff had heard of Bullough and upon consulting a directory found that he lived at the address given. He then said: “Would you like to take the articles with you?” North replied: “You had better have the cheque cleared first, but I should like to take the ring, as it is my wife’s birthday tomorrow.” The plaintiff let him do so. North pledged the ring for 350 pounds to the defendant, who had no notice of the fraud and disappeared. The cheque was dishonoured. Horridge, J. held that, as the dealings between the plaintiff and the rogue were inter praesentes, there was a rebuttable presumption that the plaintiff intended to contract with the person standing before him, and howsoever he identified himself. Consequently, there was a contract with the rogue, although the contract was voidable. Thus, the third party, (defendant) acquired good title to the jewelry.[28]
In Lewis v Averay,[29] the plaintiff had advertised his car for sale and was visited by a rogue who falsely claimed to be a well-known actor called Richard Greene. The rogue thus induced the plaintiff to sell the car to him on credit and to let him take it away in exchange for a cheque, which was dishonoured. Meanwhile the rogue sold the car to the defendant who had bought it in good faith. Again, the claim failed. The contract between the rogue and the plaintiff was not void for mistake, but merely voidable, thus the rogue acquired title over the car which he could legally transfer to the defendant. The presumption that the plaintiff intended to contract with the person before him had not been displaced. The plaintiff’s mistake was not as to the identity of the buyer (rogue) but as to his creditworthiness.[30]
The position of the law seems clear enough as to contracts inter praesentes. The confusion, however, began with the case of Ingram v Little.[31] In that case, similar to Phillips v Brooks,[32] the plaintiffs had advertised their car for sale. A rogue who claimed to be “P. G. M. Hutchinson of Stanstead House, Stanstead Road, Caterham,” came to buy the car. The plaintiffs agreed to sell it to him for 717 pounds, but when he (the rogue) proposed to pay for it by cheque they instantly called off the bargain. The rogue then said he was P. G. M. Hutchinson. One of the plaintiffs upon hearing this slipped out of the room, consulted the telephone directory at a nearby post office and verified that P. G. M. Hutchison lived at the Caterham address. Feeling reassured, the plaintiff, though they had never previously heard of P. G. M. Hutchinson, agreed to sell the car to the rogue. He later sold it to the defendant who bought it in good faith. The Court of Appeal held that the plaintiff had intended to contract with P. G. M. Hutchinson and not with the rogue. Thus the contract was void and no title in the goods inhered in the rogue. Consequently the rogue could not pass a valid title to the third party (defendant).
It would appear, therefore, that the court was swayed by the fact that the plaintiffs had called off the deal as soon as the rogue wanted to pay with a cheque and only assented to the contract upon assurance that they were dealing with a creditworthy, reputable P. G. M. Hutchinson; and this, only upon further enquiry –checking the post office directory. Thus the identity of P. G. M. Hutchinson preponderated over the physical presence of the rogue in their drawing room. It is against this background that Chitty says that: “Circumstances may therefore be present, even in a contract inter praesentes, which will indicate that the offeror intended to contract with an entirely different person from the one in front of him.”[33]
More recently, in Midland Bank Plc. v Brown Shipley & Co. Ltd,[34] Waller, J. had held that dealings inter praesentes with a person, who was a mere messenger, did not attract the operation of the presumption.
It should be noted, however, that generally, the trend is to conclude that the plaintiff intended to contract with the person (rogue) before him, once the contract was entered inter praesentes.[35]
5. The Controversy Continues
While the inconsistencies in the decisions of the court gave vent to criticisms by many learned commentators, many of them professing irreconcilable differences with each other’s submissions themselves, the more than a century old doctrine of mistaken identity had come to stay in the common law contract. The preoccupation of the commentators was usually with the fate of the innocent third parties. Such was the agitation that in its Twelfth Report the Law Reform Committee recommended that in the case of mistake as to the person, the distinction between void and voidable contracts should be abrogated so far as the acquisition of title by innocent parties is concerned and such contracts should in future be treated as voidable.[36]
Not too long ago, the controversy reared its head again with full force in the case of Shogun Finance Ltd. v Hudson[37] where a rogue expressed interest in buying a Mitsubishi Shogun Car from a motor dealer. The rogue pretended to be one Mr. Durlabh Patel, and gave Mr. Patel’s address, producing Mr. Patel’s stolen driving license as proof of his identity. The dealer agreed to sell the car for 22, 250 pounds and then faxed a draft hire-purchase agreement to the plaintiff finance company, along with a copy of the driving license. The rogue signed the written hire purchase agreement by forging Mr. Patel’s signature as reflected on the driving license. The finance company checked Mr. Patel’s credit rating and approved the finance. The dealer then allowed the rogue to take possession of the vehicle whereupon the rogue sold the car to Hudson, who bought in good faith, without notice of the fraud for 17, 000 pounds. The finance company brought a claim against the defendant (Hudson) for damages in the tort of conversion and the defendant counterclaimed that he had acquired good title in accordance with Section 27 of the Hire Purchase Act, 1964. If the rogue was a ‘debtor’ under the hire purchase agreement for the purposes of section 27 then the defendant would have acquired good title.
The court of first instance held the defendant not to be a ‘debtor’ and the majority of the Court of Appeal agreed on the basis that the hire purchase agreement had not been made with the rogue but with Mr. Patel, the person whose identity he had taken. The real Mr. Patel could not be liable on such an agreement because his signature had been forged so that the defendant was not protected.
It should be noted that the Court of Appeal rejected the defendant’s alternative argument that this was a face-to-face contract made between the rogue and the finance company via the dealer as agent, thereby raising the presumption that the finance company intended to deal with the rogue, as the person present. The basis for this rejection was that the dealer was not the agent for the finance company.
The defendant (Hudson) appealed to the House of Lords which found for the plaintiff/respondent (the finance company) and dismissed the appeal. The result was that Hudson lost both the car and his money, even though he was a bonafide purchaser for value without notice. Notably lending credence to the inconsistency and the difficulty inhered in the doctrine of mistaken identity, the House of Lords was divided 3:2; Lords Hobhouse, Phillips and Walker entering judgment for the finance company and Lords Nicholls and Millet finding for Hudson in a powerful and somewhat convincing dissenting judgment. Not unexpectedly, the case sparked off a whole lot of learned commentaries, many of them in sympathy for the ‘poor Hudson’ and some approving the majority decision.[38]
It is against this backdrop that Catharine MacMillan[39] wrote:
The third effect pertains to the effect of mistake: is the contract void or voidable? Here it must be noted that it is the presence of a third party (purchaser) that creates great difficulties in English law. As between the parties to the original contract, it is of little significance whether the contract is void or voidable. It is only significant when an innocent third party purchaser contracts with the original purchaser. It is unsurprising that when the transaction involves only two parties the contract is invariably found to be void….[40]
Tracing the history of the doctrine, MacMillan[41] found that it was the operation of the criminal law of those days that resulted in the contracts in the earlier cases of Cundy v Lindsay,[42] and Hardman v Booth[43] which then formed the basis of the contract being held void. She then advocated that those authorities be treated with great care, especially as they informed later decisions, Shogun’s case, for instance. She recalls that in the earlier cases, the “assumption that the conviction of the rogue for obtaining goods by false pretences necessarily meant that the contract was void” and that “by operation of the Larceny Act 1861, the original owner could recover his goods from the hands of an innocent third party purchaser provided that the original owner had prosecuted the felon to conviction.” But with the emergence of the Sale of Goods Act, 1893 and the Larceny Act, 1916 the position of the law changed and:
It is preferable that the modern law recognizes that where the mistake of one party is brought about by the fraud of another that the result is a voidable contract. There are sound theoretical reasons for such a result because in the case of a mistake as to identity brought about by the fraud of the other party, the consent necessary to contract is present but the legal results are negatived by the fraud.[44]
It would be recalled that earlier on in Ingram v Little[45] Devlin, L.J. had proposed apportionment of loss between the plaintiff and the innocent third party. Also, in Lewis v Averay[46] Lord Denning, M.R. had suggested that mistaken identity should render the contract only voidable and not void. This approach of Lord Denning leaned entirely towards the rights of the innocent third party and the reason proffered by the learned Master of the Rolls was that the plaintiff/seller should bear the burden, having let the rogue have the goods thus enabling the rogue to perpetuate the fraud on the innocent third party. This view of Lord Denning has been criticized thus: “With respect, Lord Denning’s blanket proposition takes away such flexibility entirely, since the whole point of pleading mistaken identity is to establish that the contract is void as title has otherwise already passed to the third party.” [47]
In the United States of America, legislation has been enacted which leans towards the protection of innocent third parties. Thus, Section 2- 403 of the American Uniform Commercial Code provides:
A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though… the transferor was deceived as to the identity of the purchaser….[48]
Because Nigeria is a federation, a plural legal system is operated such that various States have their various laws. This writer could not ascertain at the time of writing the provisions of the various laws of the various States as to mistaken identity – and that is if they have codified contract laws. In Enugu State, however, section 152 (f) of the Contract Law provides:
Subject to the last foregoing section, a contract shall be void ab initio for mistake in the following cases, and no other –
Where a party to a contract intends to make that contract with a particular person but makes it with another person by mistake as to identity and such mistake is known or ought reasonably to be known to the person with whom the contract is made: Provided that this provision shall not apply by reason only that one party would not have made the contract with the other party had he known that other party’s identity at the time.[49]
The common law position as reflected in the Cundy v Lindsay[50] case is thus codified in Enugu State meaning that contracts will be declared void in Enugu State when once there is a mistake of identity of the person intended to be contracted with. It is submitted that in line with the hullabaloo that has been raised, especially as regards the injustice done to the innocent third party purchaser for value without notice, the provision ought to be revisited. None of the authorities available to this writer suggests that any harm has been done in the United States where the Uniform Commercial Code provides that such contracts be voidable and not void for mistake as to the identity of the person intended to be contracted with,[51] rather popular opinion appears to recommend it.[52]
A legal state of topsy-turvydom is present now in the UK on the application of the doctrine, where one set of cases declares contracts to be void for mistake[53] and another set of conflicting decisions on similar facts declares the contracts to be merely voidable[54] with the effect that there is no consistent and clear principle guiding the courts’ decisions. This has created a state of confusion even for the most superior courts and tearing them apart, one side declaring the contract void for mistaken identity and the other part holding the contract to be voidable. Learned commentators have sued for a guiding legislation.[55]
A proposal by Catharine MacMillan[56] seems to this writer to allow the courts do substantial justice to the parties, especially the innocent third party, whose precarious situation has raised cause for alarm and has continued to attract sympathy for over a century. Thus, the relevant portion of Catharine MacMillan’s proposed bill is set out hereunder:
S. 1 where a party has entered into a contract and where the identity of a party to that contract is an essential element of the contract to one or more other parties thereto, at the time the contract is entered into, and there is a mistake as to the identity of the party thereto, subject to the provisions of this Act [Law], the contract is void.
S. 2 For the purposes of section 1 and section 4, the identity of a party at the time of contracting may be essential because:
(a) one or more parties extends credit to the party;
(b) the contract is concerned with the provision of a personal service;
(c) only persons within a certain category are eligible by reason of law or custom to enter into the particular of contract; or
(d) any other reason which the court finds as essential in the circumstances.
S. 3. Section 1 does not apply in circumstances where the mistake has been caused by a deception or fraud practised by another party to the contract.[57]
S. 4. Where a contract has been formed, in which the identity of a party is an essential element of the contract and a party has, by fraud or deception, misrepresented his identity, the other party or parties may rescind the contract upon discovery of the true identity.
S. 5. The right provided in section 4 is subject to the usual equitable bars for rescission.[58]
The above becomes highly recommended because it proposes a middle course, not in every case declaring the contract void and not in every case declaring the contract voidable. The Enugu State legislature is therefore enjoined to adopt Catharine MacMillan’s provision as amendment to section 152 (f) of the Enugu State Contract’s Law[59] which adopts a blanket approach to the issue, declaring the contract to be void at all times for mistaken identity. This, as has been seen, is not consistent with present practice in other jurisdictions.[60] Thus the codification of Cundy v Lindsay[61] in Enugu State gives the courts no discretion, meaning that the innocent third party is worse off than his counterpart in the UK, even with their topsy-turvy application of the doctrine of mistaken identity.
6. Conclusion
The doctrine of mistaken identity is, despite hundreds of years of its application, in a constant state of flux. The position of the law is not certain as the cases are difficult to reconcile. Case law on the subject in Nigeria appears to be nonexistent. In the absence of guidance from the Nigerian courts, Nigerian contract scholars are forced to depend entirely on the common law position which appears to remain unsettled. Meanwhile, the Nigerian Law Student or Law Teacher cannot shut his eyes to the weight of the Common Law against the innocent third party as reflected in the decision of the House of Lords in Shogun Finance Ltd v Hudson[62] which has been described as leaving “the law as confused as it was before,”[63] and it is urged that should the Nigerian courts get an opportunity, the weight of the law must not be found to descend so unfairly heavy on the shoulders of the innocent purchaser for value without notice.
Reformative legislation has collectively been touted by learned commentators. It is agreed that such proposed legislation could either apportion the loss between the two innocent parties[64] or declare such contracts to be voidable.[65] And even then, declaring such contracts to be always voidable does not solve the problem for: “It is not entirely clear that the original owner is always less meritorious than the third party. Indeed, the need for the original owner to make the necessary checks ensures that there is equity between the parties.”[66]
The argument for declaring the contract void or for making the contract voidable may have there merits. However, a middle course where a third party is involved is recommended. The suggestion that the loss should be apportioned between the two ‘innocents’ best appeals to this writer. Where as a result of the plural legal system in Nigeria, some States have promulgated legislation guiding mistaken identity; there is a need to ensure that such legislation accords with justice and fairness. As has been seen, the position in Enugu State merely restates the ratio laid down in Cundy v Lindsay.[67] This has been known to result in unsatisfactory decisions in the UK and have often times been departed from. Placing the Rock of Gibraltar constantly in the face of the innocent third party will not augur well for the Nigerian legal system.
For the law students, the law is not settled yet – at least the common law- but there are basic principles, and mistaken identity remains a fertile ground for testing the students’ intellectual and critical abilities.
* Ph.D., B.L., B.Phil. (Rome), B.D. (Rome). Senior Lecturer and Head, Department of Public and Private Law, Faculty of Law, University of Nigeria, Enugu Campus. Email- obiegedege@yahoo.co.uk; edwin. ezike@unn.edu.ng
[1] C. MacMillan, “Rogues, Swindlers and Cheats: The Development of Mistake of Identity in English Contract Law”, Cambridge Law Journal, Vol. 64 No. 3 (November 2005), pp. 711 – 744 at p. 711.
[2] To the knowledge of this writer, there is as yet no Nigerian case on the doctrine. A search through the major law reports have revealed none and one of the authorities on the subject in Nigeria, Sagay, Nigerian Law of Contract, (2nd edn., Ibadan: Spectrum Books Ltd., 2000), pp. 258 – 268 does not disclose any Nigerian case. One of the reasons for the dearth of judicial authorities on the subject in Nigeria may be that many actions and transactions in this area of law come under criminal offence of obtaining goods by false pretences and are charged under section 419 of the Criminal Code of Nigeria, Cap. C38, LFN, 2004. They do not therefore come under mistake in contract law as Nigerians do not usually bother to take up the civil aspect of the offence as is obtainable in advanced countries like the United Kingdom.
[3] For instance: C. J. Slade, “The Myth of Mistake in the English Law of Contract”, Law Quarterly Review (1954), p. 385; K. O. Shatwell, “The Supposed Doctrine of Mistake in a Contract: A Comedy of Errors”, 33 Canadian Bar Review, (1955), p.164; R. A. Samek, “Some Reflections on the Logical Basis of Mistake of Identity of Party” 38 Canadian Bar Review, (1960), p. 479; A. L. Goodhart, “Mistake as to Identity in the Law of Contract”, 57 Law Quarterly Review, (1941), p. 228; G. Williams, “Mistake as to Party in the Law of Contract”, 23 Canadian Bar Review, (1945), p. 271; G. Williams, “Mistake as to Party in the Law of Contract (Pt. II)”, 23 Canadian Bar Review, (1945), p. 380; S. J. Stoljar, “A New Approach to Mistake in Contract”, 28 Modern Law Review, (1965), p. 265; E. C. S. Wade, “Mistaken Identity in the Law of Contract”, 38 Law Quarterly Review, (1922), p. 201; T. H. Tylor, “General Theory of Mistake in the Formation of Contract”, 11 Modern Law Review, (1948), p.257; C. Grunfeld, “Some Reflections on Some Aspects of Operative Mistakes in Contract”, 13 Modern Law Review, (1950), p. 50; H. W. R. Wade, “Consensus Mistake and Impossibility in Contract”, Cambridge Law Journal, (1939 – 1941), p. 361; J. C. Hall, “New Developments in Mistake of Identity”, Cambridge Law Journal, (1961), p. 86; E. Sabbath, “Effects of Mistake in Contracts”, CLQ, (1964), p. 788; and the many recent articles on the subject cited in this work.
[4] (2003) UKHL 62; (2003) 3 W L R1371.
[5] Boulton v Jones [1857] 2 H&N 564; 21 Jur. 1156, 6 WR 107; 27 LJ Ex. 117 is an exception as it did not arise from fraud. Cf Smith v Wheatcroft [1878] 9 ChD 223; Hector v Lyons [1989] 58 P & CR 156; Gordon v Street [1899] 2 QB 641; Said v Butt [1920] 3 KB 497; Sowler v Potter [1939] 4 All ER 478.
[6] See C. Hare, “Identity Mistakes: A Missed Opportunity”, Modern Law Review, Vol. 67 No. 6 (November 2004), pp. 993 – 1007 at 993.
[7] Ibid.
[8] A. G. Guest (ed.) Chitty on Contracts, (26th edn.), (London: Sweet & Maxwell, 1989), p. 245, para. 356.
[9] Boulton v Jones above at note 5.
[10] Ingram v Little [1961] 1 QB 31.
[11] Above note 5.
[12] Chitty, above note 8, p. 246.
[13] Ibid.
[14] Upton-on-Severn R. D. C v Powell [1942] 1 All ER 220.
[15] [1878] 3 App. Cas. 459.
[16] Per Lord Cairns LC at 465.
[17] Above note 15.
[18] [1897] 14 TLR 98.
[19] Above note 15.
[20] (1927) AC 487.
[21] Ibid., at p. 500.
[22] Ibid. at p. 502.
[23] See G. H. Treitel, The Law of Contract, (7th edn., London: Sweet & Maxwell, 1987), pp. 226 – 227.
[24] Cf, Hardman v Booth [1863] 1 H & C 803.
[25] See Treitel, above note 23, pp. 226 – 227.
[26] Above note 15.
[27] [1919] 2 KB 243.
[28] See also Dennant v Skinner [1948] 2 KB 164, at 169 – 170; Lewis v Averay [1972]1QB 198 at 207.
[29] [1972] 1 QB 198; [1971] 3 All ER 907.
[30] This has given rise to the Latin legal maxim: praesentia corporis tollit errorem nominis meaning that the presence of the body cancels the error in the name. This means that the presence of a person vacates any mistake as to the person’s identity or attributes.
[31] [1961] 1 QB 31 at 73. See also Lake v Simmons above note 20.
[32] Above note 27.
[33] Chitty, above note 8, p. 247.
[34] [1991] 1 Lloyds Rep. 576.
[35] Chitty, above note 8,
[36] Law Report Committee: Twelfth Report on the Transfer of Title to Chattels, Cmnd 2958 (1966). See also Chitty, above note 8, p. 249.
[37] [2004] 1 AC 1101.
[38] See A. Phang, P. Lee, and P. Koh, “Mistaken Identity in the House of Lords”, Cambridge Law Journal, Vol. 63, No.1 (March, 2004), pp. 24 – 27, at 27; Hare, loc. cit., note 6, p. 1002; and A. Phang, “Mistake in Contract Law: Two Recent Cases” Cambridge Law Journal, vol. 61 no. 2 (July 2002), pp. 272 -276 at 276.
[39] MacMillan, above note 1, pp. 711-744.
[40] Ibid., p. 742.
[41] Ibid.
[42] Above note 15.
[43] Above note 24.
[44] MacMillan, above note 1, p. 743.
[45] Above note 31, at pp. 73-74.
[46] Above note 29.
[47] Phang, “Mistake in Contract Law: Two Recent Cases,” above note 38, p. 276.
[48] See also B. S. Markesinis, W. Lorenz and G. Dannemann, The German Law of Obligations, the Law of Contract and Restitution: A Comparative Introduction, vol. 1 (Oxford: Oxford University Press, 1977), pp. 202 – 203 cited in MacMillan, above note 1, p. 742, in which it was explained that while a mistake as to identity may allow a mistaken party to rescind the contract an innocent third party may acquire title from the rogue as a matter of property law.
[49] Contract’s Law, Cap. 26, Revised Laws of Enugu State, 2004, s. 152 (f).
[50] Above note 15.
[51] American Uniform Commercial Code, 2001, Art. 2(403).
[52] See Phang, et al, “Mistaken Identity in the House of Lords”, loc. cit., note 38, p. 27.
[53] See for instance Ingram v. Little above note 31.
[54] See also Philips v. Brooks above note 27.
[55] Hare, loc. cit., note 6, p. 1007; Phang, “Mistake in Contract Law: Two Recent Cases”, loc. cit., note 38, pp. 275 – 276, etc.
[56] MacMillan, loc. cit., note 1, p. 744.
[57] Ibid.
[58] Ibid.
[59] Above note 49.
[60] For instance, Germany and the US, or even in the UK where the courts have discretion.
[61] Above note 15.
[62] Above note 37.
[63] Hare, above note 6, p. 1007.
[64] Ingram v Little, above note 31 pp. 73 – 74; Shogun Finance Ltd. v Hudson above note 37, p. 847; J.C. Hall, “New Developments in Mistake of Identity”, Cambridge Law Journal, (1961), p. 86 at 102; C. Hare, “Inequitable Mistake”, 62 Cambridge Law Journal, (2003), p. 29 at 32.
[65] Lewis v Averay above note 29, p. 207; and also Law Reform Committee 12th Report, above note 36. See P.S. Atiyah, “Law Reform Committee Twelfth Report”, 29 Modern Law Review, (1966), p. 541 for criticisms.
[66] Phang et al, “Mistake in the House of Lords,” above note 38, p. 26.
[67] Above note 15.