if the parties are mistaken as to the quality of the thing purchased, the mistake will not be fundamental, since the buyer will have got what he contracted for, albeit of a different quality, although much will depend upon the terms of the contract and the description of that which is contracted for. It follows that a contract for the sale of a painting believed by both parties to be by John Constable will not be void if the painting is later discovered not to be a Constable. In other circumstances the courts may contrive to use alternative doctrines in order to get round the problem of mistake as to quality. For example, in Gamerco SA v ICM/Fair Warning Ltd, the court dubiously applied the

doi:10.4324/9781843141518-127

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if the parties are mistaken as to the quality of the thing purchased, the mistake will not be fundamental, since the buyer will have got what he contracted for, albeit of a different quality, although much will depend upon the terms of the contract and the description of that which is contracted for. It follows that a contract for the sale of a painting believed by both parties to be by John Constable will not be void if the painting is later discovered not to be a Constable. In other circumstances the courts may contrive to use alternative doctrines in order to get round the problem of mistake as to quality. For example, in Gamerco SA v ICM/Fair Warning Ltd, the court dubiously applied the

ABSTRACT

In other circumstances the courts may contrive to use alternative doctrines in order to get round the problem of mistake as to quality. For example, in Gamerco SA v ICM/Fair Warning Ltd,19 the court dubiously applied the doctrine of frustration so as to allow the use of the apportionment provisions of the Law Reform (Frustrated Contracts) Act 1943, as opposed to allowing losses to lie where they fell, which is the consequence of an application of common law rules on mistake. In Gamerco, the plaintiffs agreed to promote a rock concert to be staged by the defendants in Madrid. Shortly before the date of the performance, but after conclusion of the contract, the venue was discovered to be unsafe due to the use of high alumina cement in its construction. As a result, the Spanish authorities banned the use of the venue and no alternative stadium was available. While the problem could have been dealt with through the use of rules on mistake, the court contrived to treat it as a case of frustration. As a case on mistake, the court would have had to grapple with the category known as mistake as to quality and the difficulty of fitting the facts of the case within the restrictive analysis of this category in Bell v Lever Bros.