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Dear all,

Thank you to Christoph Coen. That's actually what I thought a contract of donation would have to be. I think that if we were to argue that we were mistaken in thinking that we were under an enforceable obligation in promising to make a gift that that under present English law may well count as a mistake of law and ground relief. Presumably unless anybody has any bright ideas if we wished to avoid this in English we would also have to regard a gift as a contract of donation in English law.

That aside I wonder whether Jason Neyer's solution of saying that a gift is merely a legally effective means of giving effect to our intention to transfer property can be sufficient were we as English lawyers to go over to the German system. My concern is this. We can easily tell when there is a transfer of property, but if a necessary part of Jason Neyers' view is that there be an intention to transfer property as well then presumably if there is any sort of mistake then that intention is vitiated or rendered ineffective because of the flaw in our decision making processes (the latter would be my view of the effect of mistake; I'm not sure that for present purposes it makes any difference which you accept) that intention no longer exists. If that is so surely we are back to unjust factors. If true I say hurrah.

It may be that Meier and Zimmermann would object that the mistake avoids the gift and it is the voidness for which we get relief, but is it really simpler to have such a two stage process, rather than simply saying that the mistake gives us relief?

As a final point if we were to go over to the German system what happens to Chambers view that when we transfer property under a mistake that automatically gives rise to a resulting trust? If that is true (and I grant that lots of people don't think so) is this not one of those unforeseen ripples that I talked of in my last message. Importing German law might well muck up a lot of other things.

Duncan Sheehan