It is obvious that a doctrine which permits the rescission of a contract on account of unilateral mistake approaches nearly to a contradiction of the objective theory of mutual assent in the formation of contracts to which the modern law seems generally to have tended." There is indeed a distinction between saying that the contract exists when one party is under an error as to the terms of the supposed agreement or as to some vital fact affecting their import, and saying that the contract may be rescinded; for (1) Equitable jurisdiction extends only to writings unless the property in question is land or unique in character, and therefore excludes most transactions entered into either orally or by informal writings not adopted as a memorial of the bargain. (2) Not every error would be sufficient to permit relief. (3) Relief probably would not be given if the party guilty of the error had been seriously negligent. (4) Relief would not be given if there had been a change of position on the part of the other party. (5) In some jurisdictions advantage could be taken of the error only in a court having equity powers, and relief given only if the error was clearly established by more than a mere preponderance of evidence.
But it can hardly be supposed that equitable and legal doctrines in regard to the formation and enforcements of contracts will permanently be kept in separate compartments,1 and equitable defences are now so generally allowed that a defendant sued at law on a contract which he is entitled to have rescinded in equity, may in most jurisdictions simply give notice promptly of his intention to rescind without instituting equitable proceedings, and if sued on the contract, set up the defence as an equitable plea.2 Since this is so, most of the questions involved in the case will be left to the jury,s and however careful the instructions may be, it is probable that the fine distinctions involved in them will be overlooked. Moreover, in a developed system of jurisprudence any distinction in this matter between written and oral contracts seems based on no sound principle and can hardly persist. Either all or none will be subject ultimately to the defence of unilateral mistake. In the former alternative the stability and definiteness secured by the objective theory of mutual assent - which are the best reasons for its adoption - are obviously destroyed, and this is to a large extent true when rescission of any contract is allowed for unilateral error beyond the limits stated in a previous section,4 even though equity jurisdiction is not exercised by courts of law.
Oreg. 203, 212, 135 Pac. 549; South-bridge Roofing Co. v. Providence Cornice Co., 39 R. I. 35, 97 Atl. 210; Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255. Whatever distinctions there may be in the facts of these cases as compared with those in the preceding note, there is no doubt that the courts in the cases cited in this note were antagonistic to the views expressed in the preceding note. See also New-some v. Brasell, 118 Ga. 547, 45 S. E. 397; Crilly v. Board of Education, 54 11I App. 371; Griffin v. ONeil, 48 Kan. 117, 29 Pac. 143; Wilson v. Western North Carolina Land Co., 77 N. C. 445; Borden v. Richmond, etc., R. Co.,
113 N. C. 570,18 S. E. 392, 37 Am. St. Rep. 632; Pittsburg Valve, etc., Co. v. Klingelhofer, 210 Pa. 513, 60 Atl. 161; Electric Light Co. v. Poor District, 21 Pa. Super. 95; Taylor Cotton Oil Co. v. Early-Foster Co. (Tex. Civ. App.), 205 S. W, 965; Coatee v. Buck, 93 Wis. 128, 67 N. W. 23, and see the following section.
90 See supra, Sec.Sec. 20,94,95,1536,1537.
1 "The general rule appears to be that for relief on the ground of mutual mistake the injured party may elect either the law or the equity side of the court." Henn v. McGinnis, 182 la. 131, 165 N. W. 406, 407.