• The case of Lewis v Averay [1972] 1 QB 198 concerned misrepresentation. Lord Denning, at Court of Appeal, believed a unilateral mistake of identity would render a contract voidable, however this test was rejected by the House of Lords in Hudson [2003].

Facts of Lewis v Averay [1972] 1 QB 198

  • C, Lewis, advertised his car for sale
  • G, a rogue third-party, pretended to be a famous actor to get C to sell the car to him
  • C accepted, G gave him a cheque for it
  • G then pretended to be C to sell the car to D, Averay
  • The cheque was rejected, C found out that G was a fraudster, and sued D for the car
  • At first instance, the claim was allowed

Issues in Lewis v Averay [1972] 1 QB 198

  • Was the C correct in claiming a tort of conversion?

Held by the Court of Appeal

Appeal allowed, C’s claim dismissed. There was nothing displacing the presumption, meaning there was a valid contract – sale to the innocent purchaser gave them the property.

Lord Denning M.R.

It was not on the innocent purchaser to prove he is the owner of the car

  • “I felt it wrong that an innocent purchaser (who knew nothing of what passed between the seller and the rogue) should have his title depend on such refinements. After all, he has acted with complete circumspection and in entire good faith: whereas it was the seller who let the rogue have the goods and thus enabled him to commit the fraud. I do not, therefore, accept the theory that a mistake as to identity renders a contract void.” [207]

Denning L argued unilateral mistake as to identity renders the contract voidable, not void:

  • “When two parties have come to a contract – or rather what appears, on the face of it, to be a contract – the fact that one party is mistaken as to the identity of the other does not mean that there is no contract, or that the contract is a nullity and void from the beginning. It only means that the contract is voidable, that is, liable to be set aside at the instance of the mistaken person, so long as he does so before third parties have in good faith acquired rights under it.” [207]

Denning L cited Pearce LJ in Ingrim [1961], stating the present case is “in full accord with the presumption stated” there [207]

  • “When a dealing is had between a seller like Mr. Lewis and a person who is actually there present before him, then the presumption in law is that there is a contract, even though there is a fraudulent impersonation by the buyer representing himself as a different man than he is.”