Dan - you say
The seller thought the manual was new
where does it say that?
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From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Daniel Warner [[log in to unmask]]
Sent: 05 April 2012 19:58
To: [log in to unmask]
Subject: Re: Difference between innocent misrepresentation and mutual mistake?
Well (as Marsha notes) what if the seller were no expert? I don’t think that’s the key point. What mistake did the seller make? The seller thought the manual was new, when it was not. What mistake did the buyer make? The buyer thought it was new, when it was not. Mutual mistake.
I wonder if the issue doesn’t turn on who wants relief. If a seller wants out, the claim is mistake. Remember Sherwood v. Walker: Walker offers what he thinks is a sterile cow for sale as a beef cow. Sherwood purchases it as such, but the parties agree Walker will keep the cow on his farm until spring. When Sherwood goes to pick up the cow, she’s pregnant, so Walker refuses to sell. The court rules in favor of Walker on the grounds of mutual mistake.
If the buyer wants out, the claim is misrepresentation.
Daniel M. Warner
Professor, Department of Accounting
(Business Legal Studies)
MS 9071
Western Washington University
516 High St.
Bellingham, WA 98225
(360) 650-3390
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Marsha E. Hass
Sent: Thursday, April 05, 2012 11:46 AM
To: [log in to unmask]
Subject: Re: Difference between innocent misrepresentation and mutual mistake?
Seems to me that his “expert” knowledge changes this from innocent misrepresentation to at least negligent misrepresentation. Not a case of mutual mistake - IMHO
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Daniel Warner
Sent: Thursday, April 05, 2012 2:32 PM
To: [log in to unmask]
Subject: Difference between innocent misrepresentation and mutual mistake?
Hi Colleagues,
What would you say is the difference between an innocent misrepresentation and mutual mistake?
Able sells an antique automobile owner’s manual to Baker representing that it is “new” (in the old-car literature world), i.e., unused. B finds grease marks, underlining, and cookie crumbs on two inside pages, diminishing the manual’s value.
It seems to me B would claim innocent misrepresentation as against A. But why wouldn’t mutual mistake, which gives the same result (rescission) be as good an answer?
Hmm.
Thanks,
Dan
Daniel M. Warner
Professor, Department of Accounting
(Business Legal Studies)
MS 9071
Western Washington University
516 High St.
Bellingham, WA 98225
(360) 650-3390
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