CACI 331 Affirmative Defense—Bilateral Mistake
California Civil Jury Instructions CACI
331 Affirmative Defense—Bilateral Mistake
[Name of defendant] claims that there was no contract because both parties were mistaken about [insert description of mistake]. To succeed, [name of defendant] must prove both of the following:
1.That both parties were mistaken about [insert description of mistake]; and
2.That [name of defendant] would not have agreed to enter into this contract if [he/she/nonbinary pronoun/it] had known about the mistake.
If you decide that [name of defendant] has proved both of the above, then no contract was created.
Directions for Use
This instruction does not contain the requirement that the mistake be material to the contract because the materiality of a representation is a question of law. (Merced County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d 765, 772 [284 Cal.Rptr. 680].) Accordingly, the judge would decide whether an alleged mistake was material, and that mistake would be inserted into this instruction.
If the mistake is one of law, this may not be a jury issue.
Sources and Authority
•When Consent Not Free. Civil Code section 1567.
•Consent Obtained by Fraud. Civil Code section 1568.
•Mistake. Civil Code section 1576.
•Mistake of Fact. Civil Code section 1577.
•Mistake of Law. Civil Code section 1578.
•Rescission of Contract. Civil Code section 1689.
•“A mistake of fact may be urged as a defense to an action upon a contract only if the mistake is material to the contract.” (Edwards v. Lang (1961) 198 Cal.App.2d 5, 12 [18 Cal.Rptr. 60].)
•“A ‘mistake’ within the meaning of subdivision (b)(1) of section 1689 of the Civil Code can be either one of fact or of law. ‘Generally a mistake of fact occurs when a person understands the facts to be other than they are … .’ When both parties understand the facts other than they are, the mistake necessarily is mutual and thus becomes a basis for rescission.” (Crocker-Anglo Nat’l Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496 [36 Cal.Rptr. 806], internal citations omitted.)
•“[T]o warrant a unilateral rescission of a contract because of mutual mistake, the mistake must relate to basic or material fact, not a collateral matter.” (Wood v. Kalbaugh (1974) 39 Cal.App.3d 926, 932 [114 Cal.Rptr 673].)
•“Where, as here, the extrinsic evidence is not in conflict, the determination of whether a mutual mistake occurred is a question of law.” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 527 [117 Cal. Rptr. 2d 220, 41 P.3d 46].)
•“Ordinary negligence does not bar a claim for mutual mistake because ‘ “[t]here is an element of carelessness in nearly every case of mistake … .” ’ ‘Only gross negligence or ‘preposterous or irrational’ conduct will [bar] mutual mistake.’ ” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1243 [160 Cal.Rptr.3d 718], internal citation omitted.)
•“Where parties are aware at the time the contract is entered into that a doubt exists in regard to a certain matter and contract on that assumption, the risk of the existence of the doubtful matter is assumed as an element of the bargain.” (Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 885 [124 Cal.Rptr 577].)