(ii) in the conferment of a benefit, or in the imposition or inclusion of an
obligation, which was, in all the circumstances, a benefit or obligation
substantially disproportionate to the consideration therefore…”
Thus, the mistake must have caused some sort of disequilibrium between the parties based on
what each placed their priorities on, and it should have resulted in either bestowing a gain or
a responsibility to the parties which they had not bargained for, or agreed upon, at the time
that the contract came into existence. Also, it is important to note that either one of these two
conditions can be satisfied, thus giving more leeway to the party seeking relief under the
contract.
Furthermore, it also makes provision for the protection of the party seeking relief under the
contract. This is stated in section 6 (1) (c) to the effect that even if the contract expressly or
impliedly provides for the risk of mistake, the party seeking relief under the contract is not
bound to have known about the mistake and have assumed the risk.
Some contracts may expressly or impliedly provide for the risk of a mistake to the effect that
the parties would be deemed to have assumed the risk if it occurs, whether he/she is aware of
the risk or not. This is unfair to contracting parties because in reality, how can one be deemed
to have known and assume every risk that occurs in a contract, especially when a contract is
between a large unscrupulous corporation and a poor, uninformed client. If this is the case,
then parties seeking relief under a contract may hardly ever receive such relief. This is where
the legislation has stepped in to relieve this injustice by providing that even if even if the
contract expressly or impliedly provides for the risk of mistake, the party seeking relief under
the contract is not bound to have known about the mistake and have assumed the risk.
Also, the legislation in section 7(1), 7(3) outlines the remedies that the court can grant to
parties seeking relief under a contract, provided that they satisfied the guidelines in section
6(1) (b). It states the following:
(7)(1) “Where by virtue of the provisions of section 6 the court has power to grant
relief to a party to a contract…
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