Common mistake is said to exist when both parties make the same mistake.
Each party knows the others intention but both are unaware of an underlying fundamental
fact.
This is a mistake as to the existence or ownership of the subject matter.
Common mistake renders a contract void in two circumstances:
(i) Cases of res extincta: these are circumstances in which the parties are unaware that
the subject matter does not exist. For example in Couturier V. Hastie. In such a
case the contract is void. Section 8 of the Sale of Goods Act embody this
mistake.
(ii) Cases of res sua: these are circumstances in which the person purporting to
buy has legal title in the subject matter. As was the case in Bingham V. Bingham.
maurice.mutuku answered the question on May 2, 2018 at 13:55
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