Lewis v Averay

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Citation: Lewis v Averay [1972] 1 QB 198

This information can be found in the Casebook: Paterson, Robertson & Duke, Contract: Cases and Materials (Lawbook Co, 11th ed, 2009), pp. 797-9 [31.165]

Contents

Background facts

  • The Plaintiff [Lewis] sold a car to a Rogue impersonating Richard Greene (famous actor).
  • He was convinced because the Rogue had a studio pass with his picture and the name on it. The Rogue gave him a cheque.
  • The Rogue sold the car to the Defendant [Averay] and disappeared.
  • The cheque bounced.

Argument

  • The Plaintiff alleged that since there was a mistake as to identity, the contract between him and the road never existed. Thus, the title never passed, and the car still belongs to him. He seeks damages from the Defendant [Averay] since he has his car.

Legal issues

Judgement

Lord Denning:

  • "When two parties have come to a contract -or rather what appears, on the face of it, to be a contract -the fact that one party is mistaken as to the identity of the other does not mean that there is no contract, or that the contract is a nullity and void from the beginning. It only means that the contract is voidable, that is, liable to be set aside at the instance of the mistaken person, so long as he does so before third parties have in good faith acquired rights under it."[1]
  • So, in this case, the contract was voidable, but then a third-party became involved and thus there is a bar to rescission.
  • The difference with face to face mistakes is that even if you're wrong to the actual identity, you are still contracting with this person standing in front of you, so you can't say you were contracting with someone else and therefore there was no consensus.
    • "When a dealing is had between a seller like Mr. Lewis and a person who is actually there present before him, then the presumption in law is that there is a contract, even though there is a fraudulent impersonation by the buyer representing himself as a different man than he is. There is a contract and with the very person there, who is present in person, liable no doubt to be avoided for fraud, but still a good contract under which title can pass unless and until it is avoided."[2]

References

  1. [1972] 1 QB 198, 207
  2. [1972] 1 QB 198, 207
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