THE BASIS OF COMMON ERROR

Abstract

Not being one of the simplest areas of the law of contract, mistake has had somewhat of a chequered past. Although more recently commentators have noted that the legal position has by and large been settled, there remain anomalies surrounding the ascription of contractual responsibility in certain circumstances, such as whether liability should lie where a third party has caused a material mistake between contracting parties. What is further apparent is that the courts still at times have difficulty in applying the principles pertaining to error. But a type of mistake that evidently still poses conceptual and practical difficulties is common error. This note attempts to shed some light on the underpinnings of this doctrine against the backdrop of English law, which had a marked effect on its development in South African law.