Mistake vs. Misunderstanding (Need K experts)

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Re: Mistake vs. Misunderstanding (Need K experts)

Postby onthecusp » Thu Dec 16, 2010 2:00 am

soaponarope wrote:What is the best way to distinguish between these two doctrines?

I know that misunderstanding there is no K (Void) and Mistake the K is (voidable).

I'm wondering though, how someone can "assent" to a material fact when the fact isn't true, i.e. A wants to purchase a Hen from B. B sells "Hen" to A. Both A and B believe it is a "Hen," but in fact it is a "Rooster." Is that a mistake? A belief that is not in accord with the facts at the time of K formation?

If so, that seems to me that it is a misunderstanding... can someone help me flesh out the distinction b/w the two doctrines. TIA.

Restatement 21 - Neither real nor apparent intention that a contract be legally binding is essential to the formation of a contract, although manifestation of intention that a promise shall not affect legal relation may prevent the formation of a contract.

2-207(3) If the parties act as though they have a contract, then it's a contract.

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