Towards a unified doctrine of mistake?

Abstract

The concept of mistake permeates various areas of private law and performs a similar function in relieving errors in each. This article reviews the operation of the doctrine of mistake in different substantive areas of law, including contract, unjust enrichment and equity, and argues that the similarities in terms of the requirements for establishing a mistake and the role of assumption of risk in negating a mistake should not be overstated. It further argues that the distinction between gifts and bargains, as well as the proprietary consequences of equitable mistakes, makes it premature to postulate a unified doctrine of mistake.