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Equity as a Vehicle for Law Reform: The Case of Unilateral Mistake

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)537-578
JournalCanadian Journal of Comparative and Contemporary Law
Volume2
Issue number2
Publication statusPublished - Aug 2016

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Abstract

This article asks whether English Law should permit rescission for unilateral mistakes in the formation of contract where the defendant knew, or should have known, about the claimant’s mistake, and if so, should equity deploy the remedy. The article introduces the Caveat Emptor Common Law rule on this issue, which rules out rescission, and the various considerations counting in its favour. Then, this article asks in what cases, and in what way, equity intervenes to reform areas of law where the common law solution is unsatisfactory. An argument is raised that many of the justifications of the Common Law rule on unilateral mistake fail, and as a result, the Caveat Emptor rule displays the kind of failures equity adequately addresses. It concludes by arguing the duty to disclose information at the pre-contractual stage is an example of equity’s potential to improve the law in a measured, nuanced and imaginative way.

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