法律英语词汇“mistake”的翻译、意思、用法、释义-法律词典

单词

mistake

释义

mistake

mistake a mental conception divergent from the true position. In law,

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mistake

mistake can be relevant. For a long time a distinction has been made between mistake of fact and mistake of law. A lenient attitude is taken towards the former, ignorance of the law often being said to be no excuse. In criminal law, many systems may accept the facts honestly believed by the accused to be those upon which he should be judged, but even an honest belief that a course of conduct is not criminal is unlikely to exculpate. In civil law, the general approach is that a mis- take that destroys the consent upon which contract is founded can invalidate a contract. Error calculi, 'an error in calculation', has often been corrected by courts at their own hand where an error arose in a deed simply through a failure to record the correct computation. This has to be distinguished from cases where the whole basis of the computation was not truly agreed. In English criminal law, mistake can be relevant if it affects one of the essential factual elements of the crime. It seems that a genuine belief that one of the definitional ele- ments of a crime is missing will be sufficient. The belief need not be reasonable: DPP v. Morgan [1976] AC 182. If in relation to a defence, such as self-defence, the mistake must be reasonable: Beckford v. R [1988] AC 130.

In relation to mistake of law, a mistake as to the civil law might

exculpate; for example, where somebody takes something away gen- uinely believing it to be his through some application of the civil law. A mistake of criminal law is less likely to succeed, although some statutes may lead to this being available: Sec. of State v. Hart [1982] 1 WLR 481.

In the Scots criminal law, the word error is preferred for the phe- nomenon under discussion. It is not thought that the law is entirely settled nor internally consistent. It is probably the case that a reason- able mistake as to constitutive element of a crime would exculpate. Erroneous belief as to a defence, such as consent to rape, requires only an honest belief: Meek v. HMA 1983 SLT 280. So far as error of law is concerned, a mistake as to the civil law in principle exculpates (Roberts v. Inverness Local Authority (1889) 2 White 385), but in one leading case such a defence was not allowed where it was considered that the accused's belief was not founded on rational grounds: Dewar

v. HMA 1945 JC 5. A mistake as to the general criminal law has no effect: Clark v. Syme 1957 JC 1.

In the English law of contract, if a person completely mistakes the

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mistake

nature of the deed he signs he may be relieved if the restricted doc- trine of NON EST FACTUM applies. In other cases mistake may also be operative. A distinction is often made between common mistake, where both parties to a contract are both mistaken as to the same thing, and mutual mistake, which occurs where both parties are mis- taken but make different mistakes. Recognised instances are a case of mistaken identity where the identity of the contracting party is cru- cial to the contract (Cunday v. Lindsay (1878) 3 App. Cas. 459) and where the subject matter is mistaken (Raffles v. Wichelhaus (1864) 2 H&C 906).

In the Scots law of contract, the term error is preferred to 'mistake' for the same phenomenon. Unilateral error uninduced is seldom suc- cessful as a basis for avoiding the contract: Steel v. Bradley Homes (Scotland) Ltd 1974 SLT 133, but see Steuart's Trs v. Hart (1875) 3 R 192. The distinction between common error and mutual error is noticed, and both can be effective: Stuart & Co. v. Kennedy (1885) 13 R 221. Error in the substantials of a contract renders it void in Scotland. Matters capable of being substantial are the subject matter, the persons involved, the price or consideration, the quality of the thing if essen- tial or the nature of the contract.

In England, in equity, and in Scotland, under the Law Reform Mis- cellaneous Provisions (Scotland) Act 1986, the court has power to rectify written contracts that do not express the agreement of the par- ties, a power that in both jurisdictions is subject to detailed rules and qualifications. See MISREPRESENTATION, CONTRACTUAL MISTAKES.

In both England and Scotland, the law of RESTITUTION allows money paid by mistake to be recovered. In England the restitutionary action is called an action for money had and received, and in Scotland it will usually be called a condictio indebiti. In England a mistake of law has now been held to be a sufficient unjust factor to allow the money to be recovered: Kleinwort Benson v. Lincoln City Council [1999] 2 AC 349, in this respect catching up with other jurisdictions.

In Australia the rule against recovery based on mistake of law was relaxed: David Securities Pty Ltd v. Commonwealth Bank of Australia (1992) 175 CLR 353, and it was abandoned in the mixed civilian juris- diction of South Africa: Wills Faber Enthoven Pty Ltd v. Receiver of Revenue 1992 (4) SA 202 (A). It had been abandoned in Scotland: Mor- gan Guaranty v. Lothian Regional Council 1995 SLT 299.

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modus operandi

In New Zealand, under the Contractual Mistakes Act 1977, the law is set out in statutory language and no longer depends upon the dis- tinctions of the common law. Mistake includes mistake of law or of fact, but for most purposes a mistake in the interpretation of a docu- ment will be a mistake of law. Three different types of mistake are legislated for – mistake known to the other party, common mistake, and different mistakes about the same matter of fact or law.

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