SOLUTION TO THE GREAT PEACE CONTROVERSY
Generally speaking, the common law has always been involved in controversies in its continual
evolving precedent. In all areas of law, one can identify contradicting case law which not only
bewilders the population as to what the law really is, but often causes unjust results to parties to a
proceeding. In the majority of instances, parliament is usually compelled to step in to cure the
deficiencies of the law, and bring the law back into a state of certainty.
In the area of frustration in contract law, the common law was in a state of controversy causing a
number of injustices in the law. The issue was to determine what was meant by the term ‘total
failure of consideration,’ which the courts had different interpretations of in various cases.102
This was solved by the UK legislature intervening in passing the The Law Reform (Frustrated
Contracts Act) 1943103 to put an end to the ongoing controversy and mitigate the injustices of the
common law. It is interesting to note though that the same problem as in Solle and Bell repeats
itself in the common law area of contract law. How does one define these vague tests such as
what is ‘fundamental’ in Solle and Bell? Similarly how does one define ‘total failure of
consideration’ in these frustration cases? Thus, it is deduced that where there are conflicting
authorities in the common law, which is causing injustices to contracting parties, the solution lies
in legislative intervention.
There have been several other jurisdictions outside of the U.K. that have implemented legislation
to mitigate the effects of the common law on common mistake. One such Act is the Contractual
Mistakes Act 1977 of New Zealand,104 which provides the following with respect to common
mistake. First, it is an all encompassing section that covers all type of mistakes: common, mutual
and unilateral.
Section 6 (1) (b) of the Act outlines some guidelines as to when the court can grant relief to the
parties to a contract. It states that the mistake should have resulted:
“(i) in a substantially unequal exchange of values; or
102
[1904] 1 KB 493, [1942] 2 All ER 122
United Kingdom Law Reform Frustrated Contracts Act (1943)
accessed 15th October 2012
104
Contractual Mistakes Act 1977 Of New Zealand
accessed 1st November 2012
103
74