(7)(3) The court shall have a discretion to make such order as it thinks just and in
particular, but not in limitation, it may do 1 or more of the following things:
(a) declare the contract to be valid and subsisting in whole or in part or for any
particular purpose,
(b) cancel the contract,
(c) grant relief by way of variation of the contract,
(d) grant relief by way of restitution or compensation.”
Immediately, one can recognize the difference in the remedies afforded by legislation as
compared to the common law, with respect to a contract possessing a common mistake. In
common law, the case of Bell stipulated that a contract can either be held to be valid at law or
void at law. With respect to equity, the case of Solle identified that the remedies can be carried
further by a contract also being voidable in equity. Great Peace, however came into the picture
and repositioned the law by stating that Solle was wrongly decided, and a contract can only be
valid or void at law. Furthermore, they introduced the heavily criticized Great Peace test as to
when a contract can be held to be void, which is almost impossible to satisfy. Thus, generally
speaking if one were to follow the present English law on common mistake, and were to follow
Great Peace, there would be practically one consequence for the contracting parties, which is
that such a contract would more than likely be valid at law. However this legislation provides
that the court has a discretion to grant one or more of the remedies listed above, which include
remedies that were not available to parties in equity or common law for common mistake.
Moreover, the granting of remedies are not limited to one as was in the case of the common law
and equity. Thus through the legislation the courts have more flexibility with respect to remedies,
and the parties have a greater chance of obtaining a suitable remedy that avails their case, as
compared to law and equity where it was either that one’s contract was void or voidable.
Additionally, section 8(1) of the Act provides protection to innocent third parties in a transaction
based on common mistake. It stipulates that if property has been disposed to an innocent third
party to a contract, who was not a party to the contract between the other parties where the
76