MISTAKEN IDENTITY AND CYBER CRIMES

Shiran Harsha WidanapathiranaA/11/LLB/060Department of LawUniversity of Peradeniya

ISSUE IN HAND

Does the Common law under the mistake of identity have sufficient

provisions to address the issue of hackers getting in to contracts with

parties by using other peoples’ identity?

WHAT IS MEANT BY MISTAKE AS TO IDENTITY ?

“Mistake as to identity occurs when parties to a contract are mistaken as to the identity of the person they are contracting with.”

“What commonly happens is that one party misrepresents his or her identity (the rogue) in order to persuade the other party to contract with him to take away goods on credit.”

“A mistake as to identity eats at the very heart of contract law which states that there must be consensus at idem – a meeting of the minds which could lead to an agreement and hence a contract.”

“When there is a mistake to identity, a contract does not come into existence because one party never intended to deal with the other party in the first place.”"What's Your Problem?" : Mistake as to Identity.

N.p., n.d. Web. 06 Nov. 2014. <http://justin-santiago.blogspot.com/2009/02/mistake-as-to-identity.html>.

COMMON LAW PERSPECTIVE OF MISTAKEN IDENTITY

Common Law Perspectives of

Mistaken Identity

Contracts made inter absentes

Contract made inter praesentes

“Where the parties are not physically in each others

presence.”

"Mistake Law." Law Teacher. N.p., n.d. Web. 06 Nov. 2014. <http://www.lawteacher.net/contract-law/lecture-notes/mistake-lecture.php>.

“Where the parties are inter praesentes (face to

face)” Phillips v Brooks [1919] 2 KB 243Lake v Simmons [1927] AC 487

Cundy v Lindsay (1878) 3 App Cas 459King's Norton Metal Co Ltd v Edridge Merrett Co Ltd (1897) TLR 98

DOES ROMAN DUTCH LAW (ERROR IN PERSONA)HAS A AFFECT ON COMMON LAW?

Mistake as to the identity is a ground which nullify the contract in Roman Dutch Law.

Savigny – “There can never be a contract where one contracting party has made a mistake as to the identity of the other.”

Potheir – “Error as to identity renders the contract void only when the individuality of the other contracting party enters as an element in to the contract.”Illustration – A bought a red marker from C instead of from B. Contract is valid as the individuality of the person was not significant. On the other hand, A wanted a picture of him/her drawn by professional artist X, but was drawn by X’s assistant Y. In here, the contract will be void as the individuality matters.

Weeramantry, Christopher G. Contract Law. Vol. 1. Colombo: Stamford Lake Publication, n.d. Print.

CONTINUED… The said View of Potheir had been adopted by English Courts through the cases,

However, the above viewpoint is not accepted by a number of English academic writers.

Their argument is that the approach of English law to questions of offer and acceptance is objective.

It means that the law asks “what a reasonable person in such circumstances to consider to be the meaning of the other party’s offer?” than “What did the other party in fact intend”.

Smith v. Wheatcroft[9 Ch. D. 223 at 229]

Gordon v. Street [(1899) 2 Q.B. 641]Lake v. Simmons [(1927) A.C. 487 at

p.501.]Said v. Butt [(1920)3 K.B 497]

CONTINUED… To be clear, if A makes an offer to C in mistake for D, and D accept the offer in good faith that it was intended by the offeror for him, A will be bound by the offer regardless of the mistake. (but in a Cyber Crime, it will be vice versa)

Therefore, In accordance with the objective approach “there will be no contract if the person accepting the offer knows the offer he is accepting was made to him in mistake for someone else”.

If uncertainty exists as to the correct parties to an agreement, there may in fact be no binding agreement at all.

It should also be noted that errors relating to attributes will not render a contract invalid. (includes measures such as Solvency and respectability –

King’s Norton Metal Co. Ltd.,v.Edridge, Merret &Co.Ltd.)

Weeramantry, Christopher G. Contract Law. Vol. 1. Colombo: Stamford Lake Publication, n.d. Print.

COPING COMMON LAW PRINCIPLES OF MISTAKEN IDENTITY TO INTERNET HACKING AND CYBER

CRIMES

CAN A THIRD PARTY ENTERED IN TO A CONTRACT THROUGH INTERNET UNDER A MISLEADING PARTY CAN HAVE RECOURSE UNDER COMMON LAW?

“The majority of cases dealing with unilateral mistake are situations involving mistakes of identity.”

What happens in a hacking procedure is that a misrepresenting party (The Rough) by using another persons identity getting in to contracts with third parties.

In determining the outcome of such situation, the following should be proved.

(1)To succeed in the case of a mistake as to identity there must be an identifiable third party with whom one intended to contract; and

(2)the mistake must be as to identity and not attributes.

"Mistake." Mistake. N.p., n.d. Web. 07 Nov. 2014. <http://www.peisker.de/ffa/Mistake.htm#Couturier

AndHastie>.

CONTINUED…“Where one party believes the other party to be some real person or entity other than the one with which he is actually contracting, such a mistake is operative. However, if he does not regard the personality of his partner - being willing to contract with a non-existent entity - as a matter of importance, this will have no effect at all.”

Cundy v. Lindsay [(1878) 3 App Cas 459] A fraudulent person ordered goods pretending to be another person. The goods he then sold to a third party.

The contract was held void.(It was held void ab initio – [from the beginning])The sellers had a claim in conversion against the third party.

The plaintiffs had a specific, existing person in mind.

"Mistake." Mistake. N.p., n.d. Web. 07 Nov. 2014. <http://www.peisker.de/ffa/Mistake.htm#CouturierAndHasti

e>.

CONTINUED…Boulton v Jones [(1857) 27 l. J. Ex. 1117.]

(Cant this case be used in favour of the third party?)

C had recently purchased a shop off of a third party. D sent in a written order addressed to former owner of shop (3rd party).

C performed the act (supplied the goods). C sent D an invoice. D refused to pay, as he had not made a contract with him.

Court found that there was no contract, because the offer made by D was not addressed to the C who, therefore, could not accept it.

"Flashcard Machine - Create, Study and Share Online Flash Cards." Cases for Contract Law. N.p., n.d. Web. 07

Nov. 2014. <http://www.flashcardmachine.com/cases-for-contractlawagreementii.html>.

A VIEW IN CONTRAST ADOPTED IN,

King's Norton Metal Co. Ltd. v. Edridge, Merret & Co. Ltd. (1897)

A rogue called Wallis pretended to be an imaginary firm which he called 'Hallam & Co.' and had pretentious notepaper bearing that name printed.

He ordered goods from the plaintiffs by writing to them on this notepaper and they sent the goods to him. He then sold the goods to the defendant.

The claim was denied. Wallis' personality could not have affected the minds of the plaintiffs - if they were willing to give credit to 'Hallam & Co.', a non-existent entity, they were willing to give it to anyone. Though there was fraud, there was no operative mistake.

But the main argument in here was formed by basing attributes and not the identity

CONTINUED Ingram v. Little 1961 [(1960) 3 ALL ER 332]A person presenting himself with a different but existing name bought a car from the plaintiff.

The plaintiff checked the name in the phone book.The defendant paid with a check, which bounced.

The plaintiff had a claim in conversion for the contract was void.

Reliance had been placed upon the assumed credit of an identifiable person or firm.

Lewis v. Avery [(1971) 3 ALL ER 907]The plaintiff sold a car to a man who presented himself to be Richard Greene (a famous actor).

Claim failed.He intended to contract with the person actually present.

In Phillips v. Brooks ltd (1919) , the same view was considered.

"

“where a contract

entered into with the

other party present will lead to the presumption

that a mistake about the

identity of a

contracting party is not operative.”

In both cases, the agreement was made inter

presentes, it does not happen in internet

transactions where

hacking is possible

Source – Directly From,Mistake." Mistake. N.p., n.d. Web. 08 Nov. 2014. <http://www.peisker.de/ffa/Mistake.htm#IngramAndLittle>.

CONCLUSIONSubject Cases in FavourError in Persona (RDL

Concept)

•Smith v. Wheatcroft[9 Ch. D. 223 at 229]•Gordon v. Street [(1899) 2 Q.B. 641]•Lake v. Simmons [(1927) A.C. 487 at p.501.]•Said v. Butt [(1920)3 K.B 497]

•Stephen v. Pepler [(1921) E.D.L. 70 at 86-7]•Gaunder v. Saunders [(1935) N.P.D. 219 at 225•Bird v. Sumerville & Other [ (1961) S.A. 194 (A.D) at 204.]

Mistaken Identity(Leading English Cases)

•Boulton v Jones [(1857) 27 l. J. Ex. 1117.] •Cundy v. Lindsay [(1878) 3 App Cas 459]The Strong line of authoritative cases involving only

the sect of mistaken identity under English contract law it can be concluded that there is recourse available to a third party who was affected by a rough who got in to a contract using another’s identity….

Thank you!