dangerous move, by setting out a list of guidelines to determine when a common mistake would
be regarded as fundamental, to essentially cause a contract to be void at law.
One can commend the judgment in Great Peace for attempting to resolve the obscurities in the
law of common mistake. But, the reality is that Great Peace in an attempt to elucidate the law
may have gone a few steps too far. It created this very high threshold, for individuals to make a
successful claim, in having a contract declared void based on common mistake, and ultimately
caused even more complexities in the law. Since the judgment in Great Peace, there has
developed a myriad of precedent which is now applying the Great Peace principles to a variety
of contractual situations, ultimately producing injustices to innocent parties, and third parties to a
contract. Consequently, these parties are usually unable to satisfy the extreme test, and the
contract stands despite the fact that it may be unfair to them. Pragmatically speaking, if one
respects Great Peace as the law governing common mistake, then it is almost impossible to seek
to have a contract declared void. The problem exacerbates when the fact is, that once a court
applies the Great Peace test, it automatically rejects the equitable doctrine in Solle, because the
effect of the Great Peace decision was that it overruled Solle. Consequently the injustices
created are immense, with respect to innocent parties, as discussed above, if Great Peace is
applied. Furthermore, if Solle is not applied then the parties also have no equitable remedy to
rely on.
The law on common mistake is even more complex when one observes the premise that Solle v
Butcher was an English Court of Appeal case, while the Great Peace judgment was also decided
by that court, thus the reality is that Great Peace cannot technically overrule Solle, although the
reality is that Great Peace has overruled Solle. Consequently, the various jurisdictions are
involved in what one may regard as ‘selective jurisprudence,’ where some are choosing to follow
Great Peace and reject Solle and vice versa. The reality is that ‘selective jurisprudence’ is not
the answer, because neither Great Peace, nor Solle is an adequate reflection of the law on
common mistake. Among other objectives, the primary objective of this paper is to postulate that
the answer to all of these controversies lie in legislative intervention on the law of common
mistake.
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