Great Peace test was a very high one for parties to satisfy, proving almost impossible to do so, as
the cases illustrated. Thus this led to the controversy surrounding common mistake to become
even more complex. Furthermore, several jurisdictions were involved in a process of ‘selective
jurisprudence’ where they were choosing which of the three decisions (Bell, Solle, Great Peace)
on common mistake to follow and which to disregard. This paper postulated the theory that the
controversy surrounding the Great Peace decision on common mistake lie in legislative
intervention. Reference was made to the Contractual Mistakes Act 1977 of New Zealand which
offer recommended solutions to the Great Peace controversy. Regard was also made to The
Report On The Effects Of Mistakes On Contracts 1976 by The Contracts and Commercial Law
Reform Committee of New Zealand to further illustrate the arguments in favour of legislative
intervention, to alleviate the controversy surrounding common mistake.
The Act covers all types of mistakes, thus the doctrine of contractual mistake would be governed
by one Act, making it easier for parties to be entitled to a remedy, as well as the courts
possessing well established rules to govern their decision. Secondly, the requirements in the Act
that parties have to satisfy the court to receive relief are more realistic than the Great Peace test,
and to a large extent much easier for the parties to satisfy than the Great Peace test. Thirdly,
parties seeking relief under a contract are protected in that even if their contract expressly or
impliedly provide for the assumption of the risk of a mistake, they are not obliged to accept such
a risk. This was not provided for in the common law or in equity. Fourthly, the remedies open to
the parties under the legislation are far greater than those offered by the common law and equity.
This is favourable to contracting parties, who have a greater chance of receiving relief.
Additionally it is favourable to the courts which have a greater discretion in apportioning a wide
range of remedies, not being constrained to the prior alternatives available. Fifthly, the Act also
confers protection to innocent third parties to a contract based on common mistake, and also
regulates such protection, which the common law was deficient in. Thus, the Contractual
Mistakes Act 1977 of New Zealand provides the solution to the controversy surrounding common
mistake in Great Peace. Moreover the Act goes further in filling the gaps in the common law and
equity with respect to common mistake, where deficiencies existed; thereby providing an
excellent portrayal of what the law of common mistake should emulate in all jurisdictions.
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