Common use of Mutual Mistake Clause in Contracts

Mutual Mistake. As many first-year Contracts professors know,49 the doctrine of mistake continues to baffle many students who are unable to reconcile the different outcomes in similar cases.50 The cases where an adversely affected party has been allowed to avoid a contract on the grounds of mutual mistake are inconsistent in both reasoning and result.51 In one familiar case, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the plaintiff sold what she believed to be a rock to the defendant, who was also unaware of its identity. 52 When the plaintiff discovered that the rock was in fact an uncut diamond, she sought to rescind the sale by offering the original price plus interest.53 The buyer refused and the seller sued.54 The court found that the seller had assumed the risk that the stone would be of greater value than the price the buyer paid.55 ▇▇▇▇▇▇▇▇ ▇. Walker56 stands in ▇▇▇▇▇ contrast. In that case, the parties entered into an agreement for the sale of a cow.57 Both parties believed that the cow was barren.58 When the cow was discovered to be 49. See generally Cherry, supra note 7.