ABSTRACT
Equity can also provide relief for mistake by granting rectification of a written contract containing an error (cf Chapter 5 § 2).191 Here, of course, equity is simply following the common law in upholding what in truth was promised. Once again the court will have to strike a balance between the legitimate objectives of commerce and the dictates of conscience. It will often look for some inequitable behaviour – for example, silence as to the error on the part of the person benefiting from the mistake – which can be used as a focal point for turning the good bargain into an unconscionable transaction.192 Alternatively, equity can prevent a person profiting from a mistake in a contract by refusing, as a matter of discretion, to grant specific performance of a contract containing an error (cf Chapter 5 § 4(d)). In refusing such a remedy, however, it is not to be implied that the contract itself has been rescinded; an action in damages at common law might still be available.
At one level, then, error is largely a matter of remedies and defective formation rather than a question of substantive legal rules attracting their own chapter in the textbooks. Accordingly, if a contractor wishes to escape from a contract on the basis of a mistake as to the quality of the thing sold, or on the basis of the existence or non-existence of some fact that, had it been known at the time of the contract, would have affected one party’s consent to contract, then the contractor must demonstrate this. He must show that the quality or fact either forms part of the offer and acceptance process or amounts to a condition upon which the whole obligation depends. This is by no means an easy task. For example it is unlikely that the junk shop owner who unknowingly sells a priceless picture would be able to have the contract of sale set aside on the basis that he consented only to sell a near worthless painting. The risk is on the seller and there is no general duty on the buyer to tell the seller that the painting is valuable.193 Equally, the employer who pays an employee a sum of money to determine a contract of employment will not be able claim restitution of the sum if it transpires that there had been grounds for discharging the contract of employment for breach.194
