This view has been expounded by several academic writers including David Capper, who stated
that “in giving primacy to certainty in English law, it places an extremely high premium on
careful contractual planning by the parties and the insertion into contracts of clauses protecting
parties against disappointed expectations…To take the position that if a party did not p rotect
itself by a contractual term there can never be relief is to take a very high road. It requires a lot
of faith in rules and is also unfair to contracting parties.”94
It is essential to also discuss the approach to common mistake in the various jurisdictions, and
examine the controversies present which gives us a greater sense of why a solution is necessary,
and helps us to understand why this solution should come from legislative intervention. Due to
the conflicting authorities on common mistake in Bell, Solle, and Great Peace, and the fact that
Great Peace and Solle were both English Court Of Appeal decisions, (thus Great Peace cannot
technically overrule Solle, although the judgment in Great Peace made it quite clear that they
overruled Solle); the result is that several jurisdictions are involved in a process of ‘selective
jurisprudence.’ In other words, some jurisdictions are choosing which judgement to follow, and
which one to disregard. The reality is that ‘selective jurisprudence’ is not the answer to the
controversy, because neither Bell nor Great Peace, nor Solle is an adequate reflection of the law
on common mistake. The solution lies in legislative intervention.
David Capper outlined the following precedent in his article on common mistake95, which is
relevant to our discussion. In Ireland, Costelo J. in the case of O’Neill v Ryan96 considered a
contractual common mistake. The court addressed its mind as to whether the contract could be
set aside in equity under the doctrine of Solle v. Butcher and held that there had not been any
fundamental mistake either as to the facts or the parties’ rights. The judge applied the doctrine in
Solle, without paying any regard to the doctrine in Bell.
In Australia, the law on common mistake was expounded by academic writers as follows:
“Therefore, not only is it clear that there is a jurisdiction in Australia to set aside a contract on
the ground of common mistake, but also Solle v. Butcher can be taken as a vivid illustration of
94
David Capper, ‘Common Mistake in Contract Law’ [2009] 457-473 Singapore Journal of Legal
Studiesaccessed 16th September 2012
95
96
Ibid
[1999] 1 I.R. 166 (H.C. I.r.)
71