in this lecture we shall continue with our discussion on vitiating factors specifically we shall continue with our discussion on unilateral mistake as you would recall in the previous lecture what we sought to do was to get to the point where we have to find out how do we establish the mistake as to the identity of the Contracting party now to establish the mistake as to the identity of the Contracting party the simplest way to understand this topic is to ensure that we find out whether the transaction was actually one which was face to face or a transaction that was concluded in writing let me say this again if you want to find out whether the transaction between the owner and the rook in natural contracts if want to find out whether the transaction was void or voidable the first point is to find out that this transaction was it one that was completed as a face Toof face transaction did the gentleman enter the shop to make an order for the goods himself and so they saw him by sight and by hearing or did they R write a letter to the shop to make a demand you will do yourself a lot of good if you can separate the scenarios under these two particular headings so as we move along you'll understand why this is important so we shall begin with the contracts which were concluded in writing now if you read the book The Law of contract in Ghana written by the ghanian author Christin D Hamm on page 195 this is what the Le author says about contracts and how you can establish the mistake as to the identity of the Contracting party but time I read the statement you should have an idea about how do you establish a mistake as to the identity of the Contracting party this is what she says first of all it must be shown that theer had in mind a definite identifiable person other than the person who accepted the offer with whom he intended to contract first of all it must be shown that the offeral had in mind a definite identifiable person other than the person who accepted the offer with whom he intended to contract in other words the party who alleges to have made a mistake as to the identity of the other Contracting party m not only that he did not intend to deal with a person with whom he contracted but that he actually had in mind a definite and identifiable person other than the person with whom he contracted with with whom he intended to deal I'll take it again first of all it must be shown that the had in mind a definite identifiable person other than the person who accepted the offer with whom he intended to contract in other words the party who alleges to have made a mistake as to the identity of the other Contracting party M sure not only that he did not intend to deal with the person with whom he contracted but that he actually had in mind a definite and identifiable person other than the person with whom he contracted with whom he intended to deal end of quot let me explain this it means that before you can establish the mistake as the identity of the Contracting party you the owner of the shop the seller you must show that you have in mind somebody who is in existence with whom you intended to contract and not the person who came to your shop that you dealt with there must be a definite person somebody who you know exist called there must somebody like that being a discretion that the r g to you that why say must be a definite and identifable person it mean that if the person that they portray to you was a non-existent person you will not be able to prove a mistake as to the identity of the Contracting party you understand this point in a few minutes so for you what you must show that there's somebody called mean he lives at house number five Santa Street and he's the one with whom I intended to contract and not the one that came to my in this case it means that you have been able to prove that there's somebody in existence with whom you intended to contract and not the Rook so if it is in writing they write a letter to you asking you that they want to buy 1,000 crates of a particular drink and they describe themselves as quu living at number five s Street you the seller before you can prove a mistake as to the identity of the Contracting part you must show that there's indeed somebody at number five Santa Street who is who bear the name quu and he's the one he intended to deal with and not the one who wrote the letter to you this is the first thing you have to prove if you want to establish a mistake as to the identity of the Contracting party you understand it in full when you begin to look at the cases one key case you need to know from the beginning is a case of Bon and Jones that case laed on the principle that when you make an offer to a particular person then it's only that person that can accept the offer you have made that is the Kee of Bing and Jones it's very straightforward principle but let's come to the cases that relate to the unilateral mistake we are discussing the one that relate to mistake as to the identity of the Contracting party remember like I said we are dealing with contracts which are in writing contracts which are in writing now see what the leared author Christian D says in the book The Law of contract in Ghana at page 196 and are dealing with mistake as to the identity of the Contracting party induced by the fraud of other person and we are dealing with the contract in writing these ones are not face to face transactions now let us see what happened in cand L but before I read the case remember the principle I've mentioned that before you can establish the mistake as to the identity of the Contracting party you show the seller you had in mind a definite and identifable person bearing the description that was given to you by the rook and it is that person that you intended to contract with and not the Rook what happened in of candy and ly now because of how it's been nicely breed in Chris's book I'm going to read the facts and holding as contained in the book and remember I'm reading from page 196 these are the facts of the case in the case of candy and lindsy lindsy is through l i n d s a y candy c u n d y candy versus Lindy the r named blank hir a room on 37 Wood streets Chiefs side Landon close to a wellknown and reputable FM called blank Kon in company which carried own business at 1 two 3 Wood Street Chief side land Blen wrote a letter to the owner of a business Lindy emphasis ordering a large quantity of hand kchips and signing his name such that it appeared as blankon and cool it was read as such by the Lindy FM who knew of blank as a reputable film The chiefs were dispatched to blankon and Co using the rook's address The Rook took possession of them and sold them to Candi who paid for them in full upon discovering the fraud the owners say sued candly to recover the goods or their value what would the Lord say about this end of quotes now let me read it again and when I read it triy to portray and fix this case Within the diagram I had provided the Rogue name Blen and the blank and so the rogue's actual name is blank then he went to high a room on 37 Wood Street Chiefs side Landon and was very close to a very well known and reputable film called blank and Company you see so the blank and Company was actually a company in existence a definite and identifiable entity remember the pr that I mentioned earlier that one of the key things that she has establish improving the mistake as to identity of the Contracting party it show that you had in mind a definite and identifable entity with whom you intended to contract and not the Rogue from this question you been told that there's a definite and identiable entity called blankon and Co which cared on business at 123 Wood Street Chiefs side Landing so this will play a critical role in the decision of the court now let's continue Blen wrote a letter to the owner of a business linky and ordering and ordered a large quantity of handkerchiefs and see what happened he signed his name such that it appeared as blankon and Co two things he must take from here I mean this transaction was not a face to- face transaction it was a transaction concluded in writing number two there was indeed a definite and identifable entity called blank and Co let's continue it was read as by the L who knew of blank and Co as a reputable F so you see the princi comes over here that L had in mind a definite and trouble person called blankon and Co because blankon and Co was actually in existence and it was a reputable film so now the hand when were dis passed to blank using the address the gave the r took possession so them to candy and the r vanished now the owners have now come to bring the action against the third party candy to recover the goods or their value would they be able to recover the goods from Candi to get it better let's see let's situate this case in the diagram of over here so cand L let's look at it so the seller is L the Rogue is blank and then the third party becomes candy py versus ly the sellers are ling R is blank third party cand so let's just sell R in the third party now the sellers were the ones that had their own Goods now the r made them think that they were dealing with blank K and Cold and The Rook took possession of the handkerchiefs then the quickly sold them to the third party and the Rogue have run away now the sellers want to recover from the third party can they recover from the third party or not remember the principle I gave you that as the overriding consideration be whether the contract whether the seller had in mind a definite and identifiable person with whom he intended to contract from the fact in this case do you think the sellers had in mind a definite and identifiable person the answer is yes because there was a wellknown FM called blank and Co so if the sellers had a definite and identifable person it means that the transaction between the seller and the r will be void if it is void whatever the r go to become zero whatever the gives the third party to become zero so the sellers will be able to recover from the third party let's us see whether our conclusion is correct and so from here let us read the answer given by chrisan D Hammon in her book The Law of contract in Ghana at PID 196 this is what author says let us whether the conclusion she gives is the same as what we've also come to having looked at our diagram she read as follows she give say as follows and I quot the issue was whether the contract between the owners Lindy and the blank the Rogue was void on ground of mistake as of the identity this dependent on whether it could be established that L intended to do with a definite identifable party other than the Rook blank the the House of Lords held that ly intended to deal with a wellknown and reputable F of blankon and Co of whose existence they were aware and not blank of whom they had never heard this was a clear case of an offer made by A to B which was accepted by C with whom a never intended to doal here there was an identifiable and definite person other under the RO group with whom the owners intended to contract which was the company blankon and Co so you see what you see what you see what the author is saying that the real issue in this case between was whether the contract between the owners and the r whether it was void on God of mistake or voidable on God of misrepresentation so as you have seen if the transaction between the owners and the r is is held to be void as we said in this case it was held to what void if it is held to be void then can the sellers Rec from the third party the answer becomes what yes because if it is vo it becomes because the owners had in mind a definite and idental person with whom they intended to what to contract and the transaction also was in writing that's why other the how of Lo held that L intended to deal with a well known and reputable FM of blank Co of whose existence they were aware and not blank of whom they had never heard this was a clear case of an offer made by a Tob which was accepted by C with whom a never intended to deal here there was an identifiable and definite person the r with whom the owners intended to contract which was the company blankon and Co that's why I mentioned that if you understand how the diagram works it makes the whole topic very easy your f F now should be how do you find out whether there was a mistake as to the identity of the Contracting party which will make the argument void and that one come very easy now because if not in writing all that you care about is that was there in mind a definite and identif person if there was you have a greater chance of making the contract void now to see whether you understand this case you should be able to tell the conclusion in the next case I'm going to discuss once you can tell that conclusion before I even give you the holding it means that you would have understood mistake as to the identity of the Contracting party when the transaction is not is in writing I'm still reading from Chris's book specifically for page 196 this what the Leed author States and I quote the decision in candy versus Lindy must be contrasted with the case of Kings Norton Metal Company Limited versus edri Merit and Co limited K's Northern Metal Company Limited versus edri Merit and cool limited K Norton Metal Company Limited versus edri Merit and cool limited the facts of which were are full like I said you should to tell the conclusion before I even read the conclusion to you the Rogue one wace wrote to Kings norn company the owners on letter heads reporting to be that of a company named halam and Co the company made false representations that the company owned the Rogue made false representations that the company owned a large Factory and had properties in several countries and other properties in several countries he then ordered from Kings Norton a quantity of goods which were sent by Kings Norton to the address of the r fictional compan company halam and Co emphasis fictional company halam and Co you know what fictional me mean that the company do in existence itself so he described that there's a company called halam in cool but that company was never in existence and he said that this company has a large Factory and properties in several countries but that company was never in existence all at the c l where there was a definite and entable entity called here it was a FAL company The Rue then took possession of the goods never paid for them but sold them to an innocent purchaser I Believe by now you understand the scario carefully that that the Rogue is called Wallace he has gone to tell the sellers that there's a company called halam in company and then he's writing on those letterheads then he made an order on the fal company letterheads then they sold the goods to desp the go to the the address they to possession gave them to the third party and they punished of course you know what the will be let's look at our diagram so Kings Norton over here the case is Kings Norton Metal Company Limited versus edri Merit and Co limited the sellers are King Norton Rog is wace in the third party now as so whether the sellers can recover the goods on the third party would depend on the transaction between the sellers and The Rook whether it was void or whether it was what voidable so the issue was whether King Norton had entered into the contract under a mistake as to the identity of the Contracting party again this depended on whether there was a definite identifable person the Rooks company with whom Kings Norton intended to contract end of quote so the main issue in this case was whether kings Norton had entered into a contract and a mistake as of the identity because as you aware if there's a mistake as to Identity the transaction between the Kings n and The Rook becomes word and whatever the r gives the third party to becomes word then then it mean the owners can recover from the third party so the issue was whether kings Norton had entered into to the contract and that a mistake as to the identity of the Contracting party because it was a mistake as to the identity of the Contracting party it will be the contct void but let's see what the court will state and I believe by now you have an idea already because remember the principle I gave that before you can establish the mistake as to the identity of the Contracting party then you must show but if it's not one in WR if the transaction is one in writing you must show that you had in mind a definite and identifiable person with whom you intended to contract and not the r in this case can we see that the sellers had mind a definite and entable company called halam and C intended to deal with when especially halam and itself is a fictional company of course the answer is no if it is no it means that we will not be able to prove the mistake as to the identity of the Contracting party so the transaction rather become voidable and if it is voidable what it means is that the transaction remain valid unless it is rescinded since the Rogue to the third party before the sellers even became aware and the third party acquired for Value in good faith and without notice of the r defective title it will become very difficult from the seller to recover from the third party let's see how it was resolved and I'm going to read again from the book titled the law of contracts in Ghana this is a very similar in fact it's a very important book in contract law in Ghana it is a the foremost authority if you read this book The en contract in Ghana comes to you in a very understandable and very easy way so if you don't have it try and get it Chris's book The Law of contract in Ghana and I'm reading from page 197 this is what the Leed author States the Court held that the case must be distinguished from Candy and Lindy in this case the Court held that K Norton intended to deal with whoever was the riter of the letters The Rook here The Rook had not misrepresented himself to be some else but had merely misrepresented his attributes there was therefore only one candidate the Rog who posed under the alas of halaman company halaman company did not exist again halaman company did not exist again halam company did not exist and therefore there was no other definite identifiable entity with whom the owners intended to contract the mistake was not one as identity but mely has to attribute it was held therefore that there was a a contract between the owners in The Rook even though the contract was voidable by reason of the rook's fraudulent misrepresentation the r therefore acquired title which was voidable and therefore passed on the valid title to the third party the court stated that if it could have been shown that was a separate entity called haming company and another one called W then the case might have come within the Ambit of candy and L you see if there was an a definite entity called company then we can look at candy and L and bring it over there because in candy and L there was a wellknown reputable FM called blankon en but in this particular case there's no company called halam in it's a fictional company so the main principle is that before you can hold an agreement to be void on grounds of inal mistake based on an identity of the Contracting party you must show that you had in mind a definit and identifi person in this case Kim n could not show that they had in mind a definite and idential person other than the R so because the cing show that the transaction did not become void on ground of mistake it became voidable and if was voidable it means that the RO acquired a valid title which was transferred to the third party and therefore the sellers cannot recover in the third party let us do a quick recap of contract youal mistakes and then let us see how we can establish the mistake as to the identity of the Contracting party for contracts which are not which are in writing not face to face as I have indicated earlier you know natural mistake is when only one part is making a mistake the other part is usually aware and seek to take advantage of this particular mistake now you will notice that foral mistake we mentioned that the easiest way to understand it is to separate them contary in writing and the ones which are not inv writing we look at these ones in writing so in C and L and then in this of King n company versus K Metal Company Limited versus Ed Merit and Co limited you see that it wasn't as if the Rook enter the shop to go and tell somebody I'm this person they were always writing letters always writing letters so in cand L it was a letter that was written so since it was in writing and they didn't go face to face the principle then would be that it will depend on whether the sellers had in mind a definite and identifable entity with whom they intended to contract and as in cand and L because they had in mind a definite and identifable person called blank and they made a contract between the owners and the r void and if was void it means that whatever the r get the third party because of the N have through you cannot give what you do not have the owners could recover from the third party similarly in Kings n Metal Company Limited versus edri what did we see over here over here was also in writing but in this case there was no company called halam and Co so the owners could not show that they had in mind a definite and identifiable entity that they intended to contract it therefore the agreement was held to be voidable on ground of misrepresentation and by voidable you know what it mean means that the transaction is valid unless the steps have been taken to resend it since the acquired it at the time when no step have been taken to resend this the third party will acquire a valid title which cannot be resed by the owner so the owner wants anything now he has to go after the third he has to go after the the rook and then going for his money this is where we shall draw the curtains on our discussion unal mistakes specifically contracts which are face to face in our next lecture the next focus is going to be on inal mistake specifically the ones that will relat to contracts entes which are contract entered into face to face when people transact in each other's presence how that the Lord deal with those transactions to and how would we actually be able to establish that there was indeed a mistake as to the identity of the Contracting party remember the reason we are going to discuss because if you're able to a mistake as to the identity of the Contracting party then it means the transaction between the owner and The Rook will become void if it is void it means that whatever the owner gives to the third party to became void and therefore the owner can recover so that is the main reason we have to go ahead and look at contracts that also face to face what do the law say about them but remember if it is not face to face the focus of the law is that we will find out that you you have in mind a definite and identifiable person that you intended to contract with if you did have somebody in mind like that then it means that the transaction likely to be one that will be to void on of elal mistake that is if the transaction is in writing so in our next lecture we'll find out if it is not in writing it is face to face what do the Lord say about those transactions as well this where we shall dra the Cs for this particular lecture thank you