A.

WHETHER THERE WAS MISTAKE OF FACT BETWEEN THE PLAINTIFF AND

THE DEFENDENT?

It is humbly submitted before the court that there is always a consensus ad idem (meeting of
the minds) between parties that enter into a contract. What this means is that both parties to a
contract are thinking of the same thing when they enter into a contract. Thus, when a party
enters into a contract on a mistaken assumption of some fundamental facts, the consensus ad
idem is lost. This then justifies the contract being voided for mistake1.

Mistake in the law of contract only applies to fundamental facts that go to the root of the
contract. For example, suppose that the contract states that a shipment of "plates" is to be
delivered. Here, the contract is referring to paper plates, but if one party believes it to be
ceramic plates, it could be a mistake of fact. In many cases, a mistake of fact can result in the
contract being voided.

It is humbly submitted before the court that Bell v Lever Brothers Ltd2 recognises that a
common mistake which totally undermines a contract renders it void.

Case of Solle v.Butcher3 recognises a doctrine of ‘mistake in equity’ under which a serious
common mistake in contract formation falling short of totally undermining the contract
could give an adversely affected party the right to rescind the contract.

It is humbly submitted before the hon’ble court that in the present case there was a mistake of
fact and that too was a fundamental one. According to the statement of fact, Defendant was in
the urgent need to get fumigation done in his offices and he himself doesn’t want to do the
fumigation. Accordingly he contacted Terminator company and said “I really need a way of
getting rid of the Insects..Than the executive from the company said “‘we have all the
chemicals needed to kill any type of Insect and the equipment for the fumigation. It will
cost you £350 to hire including the cost of chemicals.
If we carefully observe the statement than it will be clear that both the parties were mistaken
about a very important fact and that fact was “SERVICE OF FUMIGATION”.

1
Kleinwort Benson Ltd v. Lincoln City Council[1999] 2 A.C. 349
2
[1932] A.C. 161
3
[1950] 1 K.B. 671
The defendant wanted the fumigation to be done by the company only whereas the plaintiff
thought that defendant only want equipments and chemicals and defendant will do the same
himself.
It is humbly submitted before the Hon’ble court that in “Raffles v Wichelhaus”4

The parties entered a contract for the sale of some cotton to be shipped by 'The Peerless' from
Bombay. The Peerless had a sailing from Bombay in October and in December. The
defendant thought that it was the October sailing and the claimant believed it was the
December sailing which had been agreed. The court applied an objective test and stated that
a reasonable person would not have been able to state with certainty which sailing had been
agreed. Therefore the contract was void as there was no consensus ad idem.

In Indian law the position of mistake of fact is same as of English law. According to section
20 of Indian Contract act 1872.

Agreement void where both parties are under mistake as to matter of fact.—where both the
parties to an agreement are under a mistake as to a matter of fact essential to the agreement
the agreement is void.

Explanation. — An erroneous opinion as to the value of the thing which forms the subject-matter of
the agreement, is not to be deemed a mistake as to a matter of fact.

It is submitted before the court that section 20 makes the contract void when both the parties
are at mistake of a fact which is essential to the agreement and from the statement of facts it
is clear that both parties were not aware of each other intentions. This has to be noted down
that there was a mistake of fact not a mistake of law and the mistake was essential to the
agreement.

In TARSEM SINGH V SUKHMINDER SINGH5, the parties to the agreement for the sale of
land were not ad idem with respect to the unit of measuring land, the case was held to be
covered by section 20, making the agreement void.

4
(1864) 2 H & C 906
5
AIR 1998 S.C.1400.
In this case the seller intended to sell land in terms of “Kanals”, whereas the buyer intended
to purchase it in terms of “Bighas”. It was held to be mistake relating to a matter essential to a
agreement. The agreement was, therefore, held to be void.

In a very important case of DULARIA DEVI V. JANARDAN SINGH6, The plaintiff

illitereate women wanted to execute a gift deed in favour of her daughter. Her thumb
expression was frequently obtained on two documents, one being gift deed in favour of her
daughter and other on a sale deed in respect of her other property in favour of the defendant,
who were her daughter’s husband and his brothers. While putting the thumb impressions, she
honestly believed she was executing a single document i.e. gift deed in favour of her
daughter. It was held by the Supreme Court that the sale deed executed by her was totally
void, because, “The Plaintiff-Appellant never intended to sign what she did sign, She never
intended to enter into the contract to which she unknowingly became a party. Hence it was
declared void.

6
A.I.R 1990 S.C. 1173