Document Type

Article

Publication Date

January 2025

Publication Title

Florida State University Law Review

Abstract

In almost two decades of teaching Contracts law to first year law students, I have found one of the hardest doctrines to teach to be the excuse of mistake, both mutual and unilateral Students typically express the frustration that they cannot articulate a clear standard to determine when a party’s claim of an excusing mistake will succeed or fail. This frustration with the doctrine seems to be thousands of years old. After years of struggling to teach this topic, I resolved to dig deeper into the caselaw to see if any trends could be observed that would help dispel some of the uncertainty, or at least confirm that uncertainty and unpredictability in the law. Before selecting cases to study, I surveyed the secondary literature on contractual excuses based on mistakes of fact. What I learned is that commentary on the doctrine seems to have changed significantly over the past 125 years. The wording of the Restatement of the Law of Contracts (completed in 1932) (“First Restatement”) and the Restatement (Second) of the Law of Contracts (completed in 1979) (the “Second Restatement”) on this doctrine changed dramatically. This led me to conclude it would be helpful not only to empirically study a number of cases but also to compare two distinct time periods of cases, separated by a half century (roughly the time elapsed between the First and Second Restatements) and spanning the transition from the First to the Second Restatement. Thus, cases from two three-year periods were selected for coding so that aspects of the cases can be compared. The first set of opinions were dated within the last three-year period before the completion of the Second Restatement, i.e.. 1977 to 1979 (the “Older Cases”) and the second set of opinions were dated in the three years 2017 through 2019 (the “Newer Cases” and collectively referred to with the Older Cases as the “Data Set.”). The First Part of this article surveys selected secondary literature concerning the contractual excuse of mistake of fact that existed before the Older Cases were published and changes in that literature that occurred between the dates of the Older Cases and the Newer Cases. Part II of the article reports the results of the case coding project by first explaining the methodology and then reporting the findings. Part III reports the results of several logistic regressions (and decision tree) analyses that were performed on parts of the Data Set. Part IV offer some tentative conclusions.

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