i.e. there is no agreement at all) or so-called “mistaken identity” resulting from fraudulent misrepresentation (which usually makes a contract questionable and not void, except for written and distance documents). because it is based on the fact that performance is seriously difficult to provide. For example, in Courturier v Hastie, a corn delivery expired when two businessmen entered into a contract with it, and it was therefore found (perhaps controversial) that the seller was not liable because it was still physically impossible. And in Cooper v Phibbs, the House of Lords ruled that an agreement to lease a fishery was not entered into because it turned out that the tenant was indeed the owner. It is legally impossible to get a rental of something you own. Here too, the doctrine of common error can be circumvented, so that in McRae v Commonwealth Disposals Commission, it was found that, despite the fact that a destroyed ship off the Great Barrier Reef never existed, because a rescue operation had actually been promised by the Australian government that it was there, there was no common error. Like frustration, doctrine works only within narrow limits. In Bell/Lever Bros Ltd, Lord Atkin stated that an error “must be sufficiently fundamental to be an underlying assumption without which the parties would not have entered into the agreements.” After the war, Denning LJ added to the doctrine, beyond its narrow legal limits, in accordance with the more permissing approach recognized in all civil law countries, most of the Commonwealth, and the United States. In Solle vs.
Butcher, he held that a contract could be considered countervailable (not entirely) for a court if it was “impenetrable” for a court to keep someone in a case. This gave the courts some flexibility in the type of remedy they would grant and could be more generous in the circumstances in which they allowed to flee. But in The Great Peace, Lord Phillips MR said that this more permissive doctrine was contrary to the authority of the House of Lords of Bell against Lever Bros Ltd. Although it probably could not have been avoided due to the error in the equivalence doctrine, Lord Phillips MR felt that a rescue society could not escape a ship rescue agreement because both parties were wrong that the ship in distress was further away than they initially thought. . . .