(A) Alvanley v. Kinnaird, 2 Mac. & G. 1, 7, 8; Scott v. Littledale, 8 E. & B. 815.

(i) Manser v. Back, 6 Hare, 443, 447, 448; Alvanley v. Kinnaird, 2 Mac. & G. 1, 8.

(k) Above, pp. 635, 639 - 641.

(I) Above, pp. 31, 685.

(n) Tamplin v. James, 15 Ch. D. 215; Goddard v. Jeffreys, 30 W. R. 269, 270.

Specific performance against a party mistaken may be refused on the ground of hardship.

[n) Mackenzie v. Hesketh, 7 Ch. D. 675; Dyas v. Stafford, 7 L. R. Ir. 590, 605, 606.

(o) Tamplin v. James, 15 Ch. D. 215; Goddard v. Jeffreys, 30 W. R. 269.

(p) Van Praagh v. Everidge, 1902, 2 Ch. 266, Kekewich, J., reversed on other grounds, 1903, 1 Ch. 434 (above, p. 678), following the rule laid down in Tamplin v. James, ubi sup. in preference to the decision in Malins v. Freeman, 2 Keen, 25, where specific performance was refused at the vendor's suit in exactly the same circumstances. But note that Kekewich, J., held that in the circumstances of the case before him it was no great hardship to enforce specific performance against the purchaser, and expressly recognised that, if this were not so, specific performance might have been refused; see 1902, 2 Ch. 271, 272. It is respectfully submitted, however, that the learned judge was right in recognising that the case of Tamplin v. James set definite limits to the equitable rule expressed of old in the proposition that the Court will refuse specific performance on the ground of mistake (see Neap v. Abbott, C. P. Coop. (1837-8), 333; 1 C. P. Coop, t. Cottenham, 382; Manser v. Back, 6 Hare, 443, 447, 448). The decision in Tamplin v. James shows that the Court will not now refuse specific performance on the ground of unilateral mistake alone, and that, notwithstanding that the parties' minis in making the contract were not in truth at one, a defendant to an action in equity for specific performance of the contract may be estopped from saying so. See above, p. 679, and n. (u).

(q) Tamplin v. James, 15 Ch. D.

215, 217, 221; Goddard v. Jeffreys, 30 W. R. 269, 270; Van Praagh v. Everidge, 1902, 2 Ch. 266, 271, 272

Where one has contributed to the other's mistake.

Where one has notice of an error in the particulars.

(r) Webster v. Cecil, 30 Beav. 62; see above, p. 690.

(s) Alvanley v. Kinnaird, 2 Mac. & G. 1, 7; Durham v. Legard, 34 Beav. 611, 614; above, p. 636.

(t) Above, p. 638.

(u) Higginson V.Clowes, 15 Ves.

516 ; Swaisland v. Dearsley, 29 Beav. 430; Tamplin v. James, 15

Ch. D. 215, 216, 221; Goddard v. Jeffreys, 30 W. R. 269, 270; Van Praagh v. Everidge, 1902, 2 Ch. 266, 271, 272.

(x) Calverley v. Williams, 1 Ves. jun. 210; Townshend v. Stangroom, 6 Ves. 328, 341; above, pp. 541, 686 and n. (j); below, pp. 699 sq., 705.

(y) Above, p. 638.

Where one knew of the other's mistake and sought to take advantage of it.

Not only may a contract be void on account of a mistake excluding any real consent of the parties, where the mistaken party is not estopped from asserting his error (b); it may also be void where the parties' minds are really at one as regards the present intention of contracting, but they are under a common mistake with respect to some fact, the existence of which is a condition precedent to their uniting in the formation of a contract. On this ground a contract for the sale of a thing which both parties believe to be in existence, but which has really ceased to exist, is altogether void (c). For example, where an apparent contract is made for the sale of a life estate, both parties believing the tenant for life to be alive, when in truth he is dead, the contract is altogether void; the purchaser may resist its performance; and if it should have been completed by conveyance the conveyance may be set aside, and the purchase money may be recovered as money paid under a mistake of fact(d). The same law applies to the sale of an estate in remainder or reversion expectant on a life estate, if made on the basis that the tenant for life is living, when he is in fact dead; or to the sale of a reversion or remainder expectant on an estate tail, if actually barred at the time of sale, the parties supposing it to be still in existence (e). So it appears that if a contract be made for the sale of land or a house in the belief that the property is existing in its usual state, the agreement is void if at the time that it was made the land were washed away by the sea, or the house destroyed by fire (f). In such cases, however, the thing sold must have been utterly destroyed so as to have ceased to exist at the time of sale; mere deterioration in quality, though unknown to both parties, is not sufficient to avoid the contract, if there remain in existence something which answers to the description of the thing sold(g). For example, a contract for the sale of land would not be void if the land were, unknown to the contracting parties, temporarily flooded. And in the case of the sale of a house destroyed by fire, the validity of the contract would appear to depend on the question, whether the house were a principal object of the sale, or were merely accessory to the land sold. Thus the sale of a single house in a town seems to be void if the house were no longer in existence at the time of sale. But on the sale of a large estate, comprising several farms, the fact that some cottage or farm house or building was burnt down before the sale appears to amount to no more than a depreciation in quality and to be insufficient to render the contract altogether void on the ground of common mistake. A mere depreciation in quality, which was unknown to both parties at the time of sale, appears to be governed by the same law as applies to the case of unknown latent defects (A). If, however, it were an essential condition of the sale that the thing sold possessed a certain quality or were in some particular state of fitness (i), then it seems that, in case of a depreciation in quality unknown to both parties at the time of sale, the contract would be void on account of their common error as to a fact which formed the basis of their contracting.