Great Peace Shipping v. Tsavliris
Court of Appeal, 14 October 2002
http://www.law.cam.ac.uk/restitution/archive/englcases/great_peace_2.htm
The court of appeal holds that there is no distinct equitable doctrine
of common mistake.
The true, common law doctrine is as follows:
"(i)
there must be a common assumption as to the existence of a state of
affairs; (ii) there must be no warranty by either party that that state
of affairs exists; (iii) the non-existence of the state of affairs must
not be attributable to the fault of either party; (iv) the non-existence
of the state of affairs must render performance of the contract impossible;
(v) the state of affairs may be the existence, or a vital attribute,
of the consideration to be provided or circumstances which must subsist
if performance of the contractual adventure is to be possible. " (para
76)
This doctrine is closely analogous to the doctrine of frustration, and
"Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to
temper the effect of the common law doctrine of frustration, so there
is scope for legislation to give greater flexibility to our law of mistake
than the common law allows." (para 162).
Sundry observations on the scope of equity, circumstances when the court
of appeal may depart from its own decisions, and other matters.
Enjoy,
Steve
Hedley
=============================================
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
ansaphone : +44 1223 334931
www.stevehedley.com
fax : +44 1223 334967
Christ's College Cambridge CB2 3BU.
