16 K.C.L.J. 69 (2005)
Impossible Performance or Excused Performance - Common Mistake and Frustration after Great Peace Shipping

handle is hein.journals/kingsclj16 and id is 73 raw text is: (2005) 16 KCLJ 69

MICHELE DE GREGORIO*
IMPOSSIBLE PERFORMANCE OR
EXCUSED PERFORMANCE? COMMON
MISTAKE AND FRUSTRATION AFTER
GREAT PEACE SHIPPING
A INTRODUCTION
N     GREAT Peace Shipping Ltd v Tsavliris Salvage (International) Ltd' the Court of
Appeal spectacularly overruled the decision in Solle v Butcher2 and subsequent
authorities.s It would seem that we no longer have a doctrine of 'equitable' common
mistake.4 This aspect of the decision has been almost universally welcomeds and will
not be dealt with any further here. Instead this article is concerned with the
ramifications of the Great Peace Shipping case for common mistake at common law.
Common mistakes are unique in that the parties reach agreement on all aspects of
the contract: the requirements of offer and acceptance are satisfied and a contract is
formed. Hence they can be contrasted with mutual mistakes where the parties are
at cross purposes: offer and acceptance do not correspond and no contract ever comes
into existence.6 In other words a mutual mistake will negative consent, whereas a
common mistake can only nullify consent.7 For a contract to be discharged for
common mistake some further justification is needed, as the presence of a mistake
alone is not enough.8
* Pupil Barrister, Crown Office Chambers. I am grateful to Professor Charles Mitchell ofKinngs College London
for his invaluable comments and suggestions on earlier drafts of this article.
1. (2001) 151 NLJ 1696 (Com Ct); [2003] QB 679 (CA).
2. [19501 1 KB 671 (CA).
3. Aldthiough it may be too soon to cast them into oblivion': E. McKendrick Contract Law: Text  Cases, and Materials
(Oxford University Press, 2003) 588.
4. S. B. Midwinter, The Great Peace and Precedent (2003) 119 Law Quarterly Review 180 questions the Court's
power to overrule a previous Court of Appeal decision for being per incuriam of a prior House of Lords
judgment.
5. With the notable exception of R P. Meagher, W. M. C. Gummow andJ. R F. Lehane, Meagher, Gummow and
Lehane's Equity, Doctrines and Remedies (4th ed., Sydney: Butterworths, 2002).
6. Raffles v Wichelhaus (1864) 2 H&C 906.
7. G. H. Treitel, The Law of Contract (11 th ed., London: Sweet & Maxwell, 2003) 286.
8. The term 'discharge' is used in a non-technical sense to indicate the effect of an operative conmon mistake
or frustration; avoiding the problematic distinction between void and voidable.

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