Willis had been adjudicated bankrupt in Calcutta where he resided. The remainder of the estate was to go to Daniel Willis, the brother of Joseph, on the latters death, with eventual remainder to Henry Willis, the son of Daniel.Joseph Willis had the right to cut the timber on the estates during his life interest, and the representative in Cochrane in England threatened to cut and sell it for the benefit of Josephs creditors. Daniel and Henry wished to preserve the timber and so they agreed with Cochrane through his representatives to pay the value of the timber to Cochrane if he would refrain from cutting it. News then reached England that when the above agreement was made Joseph was dead, and, therefore, it is now owned by Daniel. It was held that Daniel was making a contract to preserve something which was already his and the court found, applying the doctrine of res sua, that the agreement was void for a common mistake. In the case
Of res extincta and res sua, equity treats them the same way as common law as it relates to the agreement being void.
A mutual mistake is where both parties of a contract are mistaken as to the terms. Each believes they are contracting for something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found. However, a contract based on a mutual mistake in judgment does not cause the contract to be voidable by the party that is affected. In the case of Raffles v Wichelhaus, the defendant agreed to buy from the claimants 125 bales of cotton to arrive ex Peerless from Bombay. There were two ships called Peerless sailing from Bombay, one in October and one in December. The defendants thought that they were buying the cotton on View More »