157 Of 174 documents

Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts § 4.8

§ 4.8 Subsequent Action May Create a Quasi Contract

[Note: This section from the prior edition, § 102, has been merged into § 4.5 above.]

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158 Of 174 documents

Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts § 4.9

§ 4.9 Mistake-Difficulty and Complexity of the Subject

The subject of mistake is one of the most difficult in the law. This is because we make so many mistakes, of so many different kinds, with so many varying effects. To err is indeed human. It would be a very damaging mistake to suppose that we know just what to do and say as to every mistake, or that we can lay down safe and easy rules and generalizations based upon judicial experience. Nevertheless, it is by this experience that the future must be guided. To guide the future requires some kind of classification and generalization, broad or narrow, by which each new case can perhaps be placed and determined.

Both judicial and extra-judicial experience shows that at times we are punished, or otherwise held responsible, for our mistakes, while at other times we are forgiven. Sometimes mistakes will be corrected, and at other times disregarded. Sometimes we are held bound by a promise in spite of a mistake and at other times not so held. It is this variable experience that must be analyzed and classified, but this experience is now so vast and so complex that generalization is difficult and may be very misleading. Earlier rules and doctrines, based upon a single case or upon a few cases must give way, even though our comforting ''illusion of certainty'' is lost. However often they have been repeated, we can no longer rely upon such familiar rules as that there is no contract unless there is a ''meeting of the minds'', or that mistake does not affect a contract unless the mistake was ''mutual'', or that mistake as to a ''collateral'' fact is immaterial. In order that new generalizations may be of real assistance to lawyers and judges, they must be limited in scope and tentative in form. To suppose that there has been uniformity of statement and action by the courts of any jurisdiction would be to make a serious mistake of fact. To lay down a dogmatic generalization as to what the courts have done and will do in the future is to make a serious mistake of law. It is without question that in any treatise or Restatement many such serious mistakes are made. We can only mitigate the resulting harm by appealing to courts and lawyers to realize that these generalizations must be tentative and subject to correction in the light of greater experience, as new cases arise to test their capacity to satisfy our changing notions of justice and human welfare.

Because of this complexity and difficulty, it is necessary to devote several chapters to the subject of Mistake. At this point, there will be stated only enough to prevent a reader of the chapter dealing with Offer and Acceptance and Mutual Assent from being misled, and to give the reader some tentative direction as to such supposed requirements as a ''meeting of the minds'' and as to ''objective'' and ''subjective'' theories of contract. Even the doing of this much requires some repetition. The citation and discussion of specific cases will mainly be postponed to the subsequent Chapters 27-29 on Mistake. In those chapters will be found a discussion of the many varieties of mistake and of the several remedies that are available.

In the process of coming to an agreement, mistakes are frequently made, either by one or by both of the parties. If both are mistaken, the mistakes that they made are seldom identical. Accurate analysis will show that this is true, even in those cases where the court declares that the mistake was ''mutual.''

One party may be mistaken as to what the other party said-the words and other expressions that were used, or, be mistaken as to what the other party intended to convey. Although one knows the exact words and expressions used, one gives to these words and expressions a meaning different from that which the other party gave to them. The meanings given by the two parties may not only be different from each other, one of them or both of them may be different from that which would be given by some third person, or by a reasonably prudent and intelligent third person.

Again, although no mistake is made as to either the words used or the meaning given to them, there may be a mistake as to some factor that was influential in inducing assent. One party may be mistaken as to the identity or the solvency of the other party, or as to the correct addition of certain figures used in determining the amount of a bid, or as to market values.

Again, one party may know, or have reason to know, the fact that the other party is laboring under a mistake. One party may know or have reason to know the meaning that is given to words and expressions by the other party. A party may be negligent in choosing words and expressions, or in failing to know the meaning given to words and expressions by the other party.

Finally, the mistake may be discovered and notice given before there has been any material change of position, or the change of position may have occurred before discovery or notice.

The operative effect of the mistake and the kind of relief to be given will depend upon factors such as those listed above. At times, as discussed in § 4.10, the mistake will prevent the formation of a contract. At other times, the mistake will be grounds for avoidance of the contract. In many cases, however, the mistake will not be grounds for relief, rather the burden of the mistake will be placed on the shoulders of the party who made it.

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Contracts LawDefensesAmbiguity & MistakeGeneral OverviewContracts LawFormationAmbiguity & MistakeGeneral Overview