CONTRACT Essay Example | Topics and Well Written Essays - 2500 words

shorten - Essay ExampleThe facts at hand clearly do non point to common splay. The mistake that is relevant in obeisance of the facts is one whereby consent is negative because one party is under a mistake. As Professor Goodhart (1941) states there is no breach of the law of recoil which is more uncertain and rough than that which is touch with the effect of mistake on the formation of a take on. In respect of the facts at hand the mistake that is relevant is the one of identity of the new(prenominal) contracting party. Generally the identity of the other party is immaterial. In respect of the claims of ES against the third party an action under tort outhouse be brought about whereby the English Law principle of nemo dat quad non habet (you cannot give what you do not confirm) would apply and if the soulfulness who sold the goods to the third party does not own any right to them thus much(prenominal) goods have to be returned. As far as ES and IE are concerned under co ntract if there has been an assumption of false identity then a claim of lampoon can also be made against the rogue. Fraudulent misrepresentation in this respect would lead to the contract being held voidable. indeed if there has been a mistake as to identity of the person who was under such mistaken belief can argue that the contract b set aside on the solid ground that the contract was entered into on the basis of mistake and thus is void tthereby having no legal effects whatsoever. Thus mistake is a better option as compared to fraud ( passkey Nicholls in Shogun Finance Ltd. v. Hudson 2. In respect of mistake as to identity there is necessity to distinguish amidst contracts that have been entered into orally and those that have been entered into in make-up. After the decision of Shogun the courts have found that where the dealing between the parties is fact to fact, there is a presumption in law that the parties intend on dealing with each other. Thus mistake as to true tak e would not be a sufficient reason. In respect of contracts in written material, the name of the parties bear greater significance because of the need for certainty in respect of written contract. Thus Lord Nicholls in Shogun stated that there is no magic attaching to a misrepresentation made in writing rather than by word of mouth. The reason for the difference in oral and contracts in writing is because of the fact that the innocent party would be unaware of who is standing in front of him when entering into the contract orally. The courts have therefore been given authority to determine the intention of the parties based on the documents and without any presumptions to such intentional. An important decision in respect of written contracts is the House of Lords in Cundy v. Lindsay3 whereby a dishonest person by giving wrong address and name of company dealt with an innocent party. The court deciding in favour of the claimants stated the reasoning that the order form had been si gned with incorrect name and the claimants were aware of the name of the firm and had the intention of dealing with them. However, the courts in Kings Norton Metal Co. v. Edridge Merrett and Co. Ltd.4 held that where letters had been sent by a rogue the claimant purported to deal with the person sending the letter and not the company. The main distinction between the two earlier cited authorities is that in the latter no