Book Review: Mistake in Contracting

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Mistake in Contracting. By Bruce MacDougall. Toronto: LexisNexis, 2018. xlii, 517 p. Includes table of cases and index. ISBN 978-0-433-47303-9 (hardcover) $170.00.

Reviewed by Melanie R. Bueckert, LL.B., LL.M.
Legal Research Counsel
Manitoba Court of Appeal
In CLLR 44:2

This text completes what LexisNexis is marketing as their “Truth in Contracting” trilogy. The first two books in the series were Estoppel (second edition published in 2019) and Misrepresentation (2016), all written by Bruce MacDougall, a professor at the University of British Columbia. MacDougall is a prolific LexisNexis author and has written Introduction to Contracts (third edition published in 2016), Canadian Personal Property Security Law, as well as related Halsbury’s titles. Whereas “mistake” only fills one chapter of MacDougall’s introductory contract law text, it now enjoys a standalone volume where the issues can be fleshed out in greater detail.

I became acquainted with MacDougall’s writings on contract law when I taught the contract law course at the University of Manitoba’s Faculty of Law in 2014. His writing style is very straightforward and accessible, and he has a knack for breaking difficult and complex topics down into manageable and easier-to-understand parts. I love his Introduction to Contracts text (particularly for use with law students), and I was pleased to find that he has managed to apply his writing style to this complex area of contract law, although this text appears to be geared toward a more knowledgeable audience. The text is user friendly in a number of ways, including the use of individually numbered paragraphs and the inclusion of a table of cases and index. There is also a detailed and well-organized table of contents.

The book has two parts. The first part is devoted to “issues that unite or transcend the different doctrines” (§A-001) that make up mistake in contract law. It helpfully contains a chapter on mistake’s relationship with other doctrines, providing useful context for the content of this work in the broader scheme of contract law generally. Note that the first part of the book comprises 175 pages. The second part of the book “examines various contexts and doctrines of mistake” (§B-001). It is divided into five chapters, but as MacDougall explains, “there are in fact two broad groupings: what might be called mistake inside the contract itself and mistake in the background to the contract” (§B-001). The remaining 300-plus pages are devoted to issues such as non est factum, mistake as to terms, rectification, mistaken assumptions, and mistake in identity. In addition to addressing a number of thorny theoretical issues surrounding mistake in contracting, the author also regularly addresses practical issues, such as evidentiary and procedural matters (pp 125 and 392 et seq). It should be understood, however, that this text is geared toward common-law jurisdictions and does not contain a discussion of civil law on this subject. As indicated in the preface, the law in this book is current to mid-December 2017.

I am not aware of any other Canadian texts that deal with this issue to this extent. While leading contract law texts address mistake, their authors simply do not have the space to address the law with this level of detail. For instance, Stephen M. Waddams devotes about 100 pages of his approximately 775-page text to issues related to mistake.[1] Instead, this text is along the lines of the English texts Misrepresentation, Mistake and Non-Disclosure by John Cartwright and Rectification: The Modern Law and Practice Governing Claims for Rectification for Mistake by David Hodge.[2]

Libraries looking to expand their contract law holdings, including academic law libraries, should consider purchasing this book, as well as libraries serving lawyers involved in commercial litigation and resolving contractual disputes. Libraries with one or both of the first two books in this series in their collections should complete the set with Mistake in Contracting to provide their patrons with complete access to a detailed explanation and critique of the law in this area.

[1] Stephen M Waddams, The Law of Contracts, 7th ed (Toronto: Carswell, 2017).

[2] John Cartwright, Misrepresentation, Mistake and Non-Disclosure, 4th ed (London: Sweet & Maxwell, 2016); David Hodge, Rectification: The Modern Law and Practice Governing Claims for Rectification for Mistake, 2nd ed (London: Sweet & Maxwell, 2015).