It is not uncommon to enter a contract holding a mistaken belief about a significant matter. English law’s response is complex. Where the mistake stemmed from a positive misstatement made by the other party the law quite readily finds the contract voidable for misrepresentation. The two main debates in this chapter concern doctrines standing in contrast to misrepresentation: first, that a failure to disclose information is not usually actionable (why not?); second, that a sufficiently fundamental mistake negates or nullifies the consent necessary for formation, so that the apparent contract is rendered void (not merely voidable). The effect (and indeed the very existence) of the doctrines of identity mistake (fraudulent impersonation) and common mistake has been questioned. Before turning to these we briefly indicate some problems in the law of misrepresentation. Although nobody questions its existence, many of the detailed rules are controversial.
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- Misrepresentation and Mistake
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- Chapter 5