Under the objective theory of mutual assent, which bases the imposition of contractual obligations on the expressed intent of the parties, rather than on a subjective meeting of their minds, the law has generally granted relief to the signer of a contract who is under a misapprehension as to its contents only where he can show that the mistake was made without negligence on his part. The theory of affording relief in such a case apparently is that the instrument does not really represent the expression of the signer's intent, and the contract is, therefore, void at its inception. In view of the usual catagorical statements of the general theory of objective assent, such as, "not assent, but what the other party is justified in regarding as assent, is essential," the logic of the cases allowing relief for unilateral mistake as to the contents of the writing seems somewhat strained, unless it is realized that a reasonable- man standard of objectivity is being used. This is demonstrated by the emphasis in these cases on the negligence of the signer, which precludes him from obtaining relief. Thus, in determining the standard of care to which a signer of a contract is to be held, it has been repeatedly decided that a literate person must read the contract himself, and that a person who is illiterate must get someone to read or explain it to him. Indeed, it has sometimes been held that such negligence will prevent the releasor from avoiding the release even where there has been fraud or misrepresentation on the part of the releasee.
Neil McKay S.Ed.,
CONTRACTS-RELEASE-MISREPRESENTATION BY RELEASOR'S ATTORNEY- AVOIDANCE BY RELEASOR FOR UNILATERAL MISTAKE AS TO CONTENTS,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol44/iss6/8