30 Questions
Define mistake in a contractual sense.
Mistake in a contractual sense occurs when a contracting party acts under an incorrect impression regarding a fact that relates to or affects the contract between the parties.
What is the classification of mistake when only one party is mistaken and the other party is aware of the mistake?
Unilateral mistake
Explain what is meant by dissensus in the context of mistake.
Dissensus refers to a lack of consensus where one party remains silent, indicating a lack of agreement or awareness of the mistake.
Differentiate between unilateral mistake and mutual mistake.
Unilateral mistake involves only one party being mistaken, while mutual mistake occurs when both parties are mistaken about each other's intentions.
What is the characteristic of a common mistake in a contract?
A common mistake is when the mistake is shared by all parties to the contract.
Explain the concept of irrelevant mistake in a contract.
An irrelevant mistake occurs when the mistaken party would have entered into the contract regardless of the mistake, making the mistake considered irrelevant.
What type of mistake must touch the agreement in a material or fundamental respect?
Material mistake
In the absence of consensus, what happens if there is a material mistake?
No contract can be said to have existed.
What makes a contract voidable if consensus was reached in an improper manner?
Misrepresentation, duress, undue influence, or commercial bribery
What are the requirements for parties in the case of a material mistake?
Seriously intention to contract; be of one mind as to material aspects; and be aware that all parties are of the same mind
Give an example of a material aspect mistake regarding parties to the contract.
National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958(2) SA 473
Provide an example of a mistake regarding material terms in a contract.
Allen v Sixteen Investments Stirling Investments (Pty) Ltd.
What is the decisive question in a case of unilateral mistake according to Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992?
Did the party whose actual intention did not conform to the common intention expressed, mislead the other party?
According to Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992, what are the three-fold enquiries usually necessary in cases of unilateral mistake?
- Misrepresentation as to one party’s intention. 2. Who made that representation. 3. Was the other party misled?
In Allen v Sixteen Stirling Investment (Pty) Ltd 1974, why did the plaintiff seek an order declaring the written agreement null and void?
Because the plaintiff believed he was buying a different immovable property than the one described in the agreement.
What type of mistake was considered in Allen v Sixteen Stirling Investment (Pty) Ltd, 1974?
A fair or reasonable mistake (iustus mistake).
According to Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992, what two possibilities does the last question postulate?
Whether the other party was actually misled and if a reasonable man would have been misled.
What did the South African Appellate Division set out as the approach to unilateral mistake in Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992?
The decisive question revolves around the party's actual intention and if it misled the other party.
What type of mistake is error in persona according to the case Venter and Others v Credit Guarantee Insurance Corporation of Africa Ltd.?
Material only if the identity of a party is of vital importance to the mistaken party.
In the case Kok v Osborne & Another, what was the mistake made by the seller?
The seller accepted an offer ostensibly made by two buyers jointly, when it was actually from only one buyer.
According to Davis AJ in Prins v Absa Bank Ltd., what are the set of questions to be considered when evaluating a mistake?
(a) Is there consensus? (b) If not, is there dissensus caused by a mistake? (c) Is the other party aware of the mistake? (d) Who induced the mistake and was it done by commission or omission which was either fraudulent, negligent or even innocent?
What is the significance of the identity of a party in error in persona cases?
The identity of a party is vital if it is of importance to the mistaken party.
In the context of a mistake, what is required to determine if there was dissensus?
Dissensus can be caused by a mistake that affects the consensus between parties.
What was the outcome of the seller accepting the offer in the case Kok v Osborne & Another?
The defendant would not have accepted the offer if he knew the true position.
What remedy can a party seek if they believe the written contract does not accurately reflect the true intention of the parties?
Rectification
In the context of rectification, when is the remedy available?
When all parties to the contract were in fact of one mind but the written contract failed to accurately express their consensus.
What does rectification do to a contract?
Rectification does not create a new contract or amend an existing one; it corrects the written memorial of the agreement to express the true intention of the parties.
In the case of Boundary Financing Ltd v Protea Property Holdings, what legal principle regarding rectification was highlighted?
Rectification is a remedy available to parties to an incorrectly recorded agreement.
Who is eligible to apply for rectification in the context of a mistaken agreement?
A party to the incorrectly recorded agreement.
What is the primary purpose of rectification in contract law?
To correct the written document to reflect the true mutual agreement of the parties.
Study Notes
Absence of Consensus: Mistake
- A mistake in a contractual sense occurs when a party acts under an incorrect impression regarding a fact that affects the contract.
- A contract is based on consensus between parties, but parties may think they have reached consensus when, in fact, they are mistaken.
Types of Mistakes
- Unilateral mistake: one party is mistaken, and the other party is aware of the mistake.
- Mutual mistake: both parties are mistaken about each other's intentions.
- Common mistake: all parties share the same mistake.
- Irrelevant mistake: the mistaken party would have entered into the contract regardless of the mistake.
Sonap Petroleum Case (1992)
- The South African Appellate Division outlined a three-fold enquiry to determine if a unilateral mistake occurred:
- Was there a misrepresentation of one party's intention?
- Who made the representation?
- Was the other party misled?
Material Mistakes
- A material mistake goes to the heart of the contract and negates consensus.
- Examples of material aspects include:
- Mistakes about parties to the contract
- Mistakes about material terms
Rectification
- A remedy available when all parties were of one mind, but the written contract failed to accurately express their consensus.
- Rectification corrects the written memorial of the agreement to accurately reflect the true intention of the parties.
- It is not available where only one or some parties were under a misapprehension or mistaken impression.
Applying for Rectification
- A party to an incorrectly recorded agreement can apply for rectification.
- The applicant must ask for the document to be corrected to conform with the true intention of the parties.
- Rectification can be applied for when the written contract fails to accurately express the true mutual agreement of the parties.
This quiz covers the concept of absence of consensus in contract law, specifically focusing on mistakes made by contracting parties that can affect the validity of a contract. It discusses how mistaken impressions regarding facts can impact the agreement between parties.
Make Your Own Quizzes and Flashcards
Convert your notes into interactive study material.
Get started for free
