In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later.
Held: On the assumption that it was not a Constable and that it had been a condition of the contract that it be such, the plaintiff had had a right to reject the picture. That right would be lost after a reasonable time. Five years was too long, and the right to reject was lost.
Denning LJ said: ‘In my opinion, this case is to be decided according to the well known principles applicable to the sale of goods. This was a contract for the sale of goods. There was a mistake about the quality of the subject-matter, because both parties believed the picture to be a Constable; and that mistake was in one sense essential or fundamental. But such a mistake does not avoid the contract: there was no mistake at all about the subject-matter of the sale. It was a specific picture, ‘Salisbury Cathedral’. The parties were agreed in the same terms on the same subject -matter, and that is sufficient to make a contract: see Solle v Butcher.
‘There was a term in the contract as to the quality of the subject-matter: namely, as to the person by whom the picture was painted – that it was by Constable. That term of the contract was, according to our terminology, either a condition or a warranty. If it was a condition, the buyer could reject the picture for breach of the condition at any time before he accepted it, or is deemed to have accepted it; whereas, if it was only a warranty, he could not reject it at all but was confined to a claim for damages. . . I think it right to assume in the buyer’s favour that this term was a condition’
Sir Raymond Evershed MR, Denning LJ, Jenkins LJ
[1950] 1 All ER 693
England and Wales
Citing:
Cited – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Cited by:
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189997