Mistakes in English law

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Mistake is a term of art in both contract law and criminal law in England and Wales.

Contract law[edit]

Mistakes are a group of rules in English contract law, which happen to share the same name. If the law deems a mistake to be sufficiently grave, then a contract entered into on the grounds of the mistake may be void. A mistake is an incorrect understanding by one or more parties to a contract. There are essentially three types of mistakes in contract,

  • unilateral mistake is where only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.[1] It is also possible for a contract to be void if there was a mistake in the identity of the contracting party. An example is in Lewis v Averay[2] where Lord Denning MR held that the contract can only be avoided if the plaintiff can show that, at the time of agreement, the plaintiff believed the other party's identity was of vital importance. A mere mistaken belief as to the credibility of the other party is not sufficient.
  • mutual mistake is when both parties of a contract are mistaken as to the terms. Each believes they are contracting to something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found. However, a contract based on a mutual mistake in judgement does not cause the contract to be voidable by the party that is adversely affected. See Raffles v Wichelhaus.[3]
  • common mistake is where both parties hold the same mistaken belief of the facts. This is demonstrated in the case of Bell v Lever Brothers Ltd,[4] which established that common mistake can only void a contract if the mistake of the subject-matter was sufficiently fundamental to render its identity different from what was contracted, making the performance of the contract impossible. This is similar to frustration, except that the event precedes, rather than follows the time of agreement.

Common mistake[edit]

Res Sua, there is a mistake as to the title/name of an involved party (where the subject matter already belongs to oneself for example)

Res Extincta, where subject matter does not exist

Mutual mistake[edit]

Unilateral mistake to identity[edit]

Mistake as to identity occurs when one party – usually deceived by a "rogue" – believes themselves to be bargaining with another, uninvolved, third party. [5][6] In a typical situation of this kind, the contract will either be void for mistake, or voidable for fraud. Such a distinction depends on the manner in which the contract was made. There are two types: (1) Contract made inter absentes, when the parties do not meet face-to-face, e.g. through correspondence; and (2) Contract made inter praesentes -- when the parties meet face-to-face [7][8] One commentator states "'[t]here are few more vexed areas of contract law' than mistake of identity." [9] The English approach provides less protection to the purchaser from a rogue than American law.[10]

Inter absentes[edit]

A Contract made inter absentes occurs when the parties do not meet face-to-face, e.g. through correspondence. [11][12]


In this leading case, Lindsay & Co sold handkerchiefs to a rogue pretending to be an existent and reputable firm Blenkiron & Co (they were dealing by correspondence). The contract was held to be void for mistake because Lindsay & Co had intended to contract with Blenkiron & Co, not the rogue. Lindsay & Co were able to recover the handkerchiefs from a third party who had purchased them from the rogue (as the rogue did not have good title to pass on to them).

  • King's Norton Metal Co v Edridge Merrett & Co [1897] 14 TLR 98 [13][14]

In similar situation similar to the preceding case, except that rogue used the name of a non-existent company. The seller could not claim they had intended to contract with the non-existent company, so the contract was merely voidable for fraud, and the third party obtained good title to the goods.

Although Cundy v Lindsay and Phillips v Brooks have had a difficult co-existence which has led to confusion (e.g. Ingram v Little,[15]) the principle was upheld by a 3:2 majority in the House of Lords decision of Shogun Finance Ltd v Hudson.[16] The minority of Lord Nicholls and Lord Millett argued strongly for the abandonment of Cundy v Lindsay and in favour of the principle that all mistakes for identity merely render a contract voidable; for instance, Lord Nicholls argued that the loss should be borne by the seller, "who takes the risks inherent in parting with his goods without receiving payment", rather than by the innocent third party.

Inter praesentes[edit]

A contract made inter praesentes occurs when the parties meet face-to-face.[17][18]


In a contract was made face to face, the court presumed that the seller intended to contract with the person in front of them, so the contract was not void for mistake to identity.

  • Ingram v Little [1961] 1 QB 31[19]
  • Lewis v Averay [1971] 3 WLR 603[20]

A rogue impersonating one Richard Green, a popular actor, told the plaintiff who had advertised to the sale of his car and offered to buy it for the advertised price, 450 pounds. Subsequently, the rogue appended his signature that clearly displayed "R. A. Green" on a cheque which he presented to the seller; as a result, he was granted the chance of taking away the car. The cheque bounced and the buyer was indeed not Richard Green. He sold the car to one Averay, a third party who purchased the car in honesty. In an action brought against Averay for conversion, the Court of Appeal, following Phillips v. Brooks and disregarding Ingram v. Little held that despite his mistake, the plaintiff had completed a contract with the rogue.

Unilateral mistake as to terms[edit]

Non Est Factum[edit]


Criminal law[edit]

Mistake of fact[edit]

Mistake of fact may be a defence in criminal law if is genuine, whether or not it is reasonable.

In DPP v Morgan[21] an RAF officer told three other officers to have sex with his wife, and that she would pretend to refuse just to be stimulating. They pleaded mistake, and the jury did not believe them. The House of Lords held that the judge had wrongly directed the jury that the mistake must be a reasonable one; the correct legal test was whether the defendants had honestly believed the wife was consenting, not whether they reasonably believed this. However, on the facts the House of Lords held the conviction was nonetheless safe despite the misdirection. R v Williams (Gladstone) confirmed the principle stated in Morgan that a belief that a certain set of facts are true does not need to be reasonable to operate under the defence of mistake. It merely needs to be genuine. However, the reasonableness of that belief is material in the jury deciding whether the defendant had actually held that belief.[22]

An exception to this appears to be bigamy (see R v Tolson (1889) 23 QBD 168).

The Sexual Offences Act 2003 has introduced a hybrid test of reasonable belief as to consent. The defendant must now be seen to have taken steps to ascertain clearly whether the "victim" was consenting in all the circumstances. This abolishes the defence of a genuine though unreasonably mistaken belief as to the consent.

Mistake of law[edit]

Mistakes about the criminal law[edit]

It is not a defence that the defendant held an honest and reasonable belief that what he was doing was not criminal.[23] Where the defendant is a foreigner, and the offence is not criminal in his own country, the fact of such a belief is still not a defence.[24] It is not a defence that the defendant believed that he would not be prosecuted for what he was doing.[25]

Offences created by statutory instruments[edit]

Section 3(2) of the Statutory Instruments Act 1946 provides:

In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by [or under the authority of] His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.

(Words in brackets inserted by section 1(1)(a) of the Statutory Instruments (Production and Sale) Act 1996, as read with section 1(2))

Mistakes about the civil law[edit]

A mistake about the civil law may have the effect of negativing the mens rea for an offence. See:

  • Section 2(1)(a) of the Theft Act 1968
  • R v Smith (David Raymond) [1974] QB 354, 58 Cr App R 320, [1974] 2 WLR 20, [1974] 1 All ER 632, CA
  • R v Gould [1968] 2 QB 65, 52 Cr App R 152, [1968] 2 WLR 643, [1968] 1 All ER 849, CA
  • R v Barrett and Barrett, 72 Cr App R 212, [1980] Crim LR 641, CA

See also[edit]


  1. ^ Smith v Hughes [1871]
  2. ^ Lewis v Averay [1971] 3 All ER 907
  3. ^ Raffles v Wichelhaus (1864) 2 Hurl. & C. 906.
  4. ^ Bell v Lever Brothers Ltd [1931] All ER 1, [1932] AC 161
  5. ^ [1]
  6. ^ http://e-lawresources.co.uk/Mistake.php
  7. ^ [2]
  8. ^ http://e-lawresources.co.uk/Mistake.php
  9. ^ [3] with reference: "MacMillan [2005] CLJ 711. See also Goodhart (1941) 57 LQR 228."
  10. ^ https://lra.le.ac.uk/bitstream/2381/10084/5/A%2BComparative%2BAnalysis%2Bof%2BMistake%2Bof%2BIdentity%2B%28final%29%2B1.pdf
  11. ^ [4]
  12. ^ http://e-lawresources.co.uk/Mistake.php
  13. ^ http://swarb.co.uk/kings-norton-metal-co-ltd-v-edridge-merrett-and-co-ltd-ca-1879/
  14. ^ http://e-lawresources.co.uk/Kings-Norton-v-Edridge.php
  15. ^ [1961] 1 QB 31
  16. ^ [2004] 1 AC 919
  17. ^ [5]
  18. ^ http://e-lawresources.co.uk/Mistake.php
  19. ^ http://e-lawresources.co.uk/Ingram-v-Little.php
  20. ^ PP. 560-1 of [6]
  21. ^ [1976] AC 182, [1975] 2 WLR 913, [1975] 2 All ER 347, 61 Cr App R 136, [1975] Crim LR 717, HL
  22. ^ R v Williams (Gladstone), (1983) 78 Cr App R 276, [1984] Crim LR 163, CA (28 November 1983)
  23. ^ Johnson v Youden [1950] 1 KB 544 at 546, [1950] 1 All ER 300, 66 TLR, (Pt. I), 395, DC
  24. ^ R v Esop (1836) 7 C & P 456, (1836) 173 ER 203; R v Barronet and Allain (1852) Dears 51, (1852) 169 ER 633, (1852) 1 E & B 1, (1852) 118 ER 337, (1852) 22 LJMC 25, (1852) 17 Jur. 184
  25. ^ R v Arrowsmith [1975] QB 678, 60 Cr App R 211, [1975] 2 WLR 484, [1975] 1 All ER 463, [1975] Crim LR 161, CA


  • P Atiyah and F Bennion, 'Mistake in the Construction of Contracts' (1961) 24 MLR 421
  • J Cartwright, 'Solle v Butcher and the Doctrine of Mistake in Contract' (1987) 103 LQR 594
  • P Matthews, 'A Note on Cooper v. Phibbs' (1989) 105 LQR 599