Lewis v Averay (No 1) – Case Summary

Lewis v Averay (No 1)

Court of Appeal

Citations: [1972] 1 QB 198; [1971] 3 WLR 603; [1971] 3 All ER 907; [1971] CLY 1801.


The claimant sold his car to a rogue. The parties met in person and the rogue introduced himself as a particular television actor. When the claimant asked him for proof of his identity, he provided it. The rogue paid by cheque from a stolen cheque book, and left with the car and its logbook. He then sold the car to the defendant, who bought it in good faith.

The claimant sued the defendant for the return of the car and damages for its detention. To establish this, they had to show that their contract with the rogue was void for unilateral mistake. If it is was merely voidable for misrepresentation, property would have passed to the rogue, who would have passed that property to the defendant before the contract could be voided.

  1. Was the contract between the claimant and the rogue void for mistake?

The Court of Appeal held for the defendant. The claimant was presumed to intend to contract with the person in front of him, no matter who that turned out to be. The court did not think there was anything on the facts which displaced this presumption. There was therefore no mistake as to a fundamental term of the contract. At most, the contract was merely voidable for misrepresentation.

This Case is Authority For…

A contract can only be void for mistake if one party is mistaken as to a fundamental term of the contract. When parties contract face-to-face, they are presumed to intend to contract with that physical individual.

This means that if that person lies about their identity, whether by impersonating a real or fictional person, the contract is not void for mistake. The courts treat the mistake as merely relating to the rogue’s attributes: not a fundamental term of the contract.


Lord Denning and Megaw LJ disapproved of the decision in Ingram v Little [1961] 1 QB 31. The facts of Ingram, Lord Denning argued, are impossible to distinguish from the similar case of Phillips v Brooks Ltd [1919] 2 KB 243, where the court reached the opposite conclusion.

Megaw LJ explained that the different rules relating to when mistakes about a person’s identity void the contract attempt to discern whether identity is ‘vital’ to the contract.