To Err is Human

Abstract:     
This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in unanticipated, negative consequences. Interweaving literary and operatic illustrations with discussions of cases, statutes, doctrinal and theoretical scholarship, the Model Penal Code, the Restatements of Contracts, Property, Restitution and Unjust Enrichment, and Torts, and insights from psychology and philosophy, Farnsworth's exploration of alleviating and inculpating mistakes (both involve the same mechanism, the difference is the legal consequence that follows) delves into how contract, criminal, and tort law, and equity deal with factual and legal mistakes, the rationale for each substantive body of law's similar or dissimilar treatment of various types of mistakes, and how judicial and jurisprudential attitudes toward mistakes have evolved over time.

Keywords: mistake, unilateral mistake, mutual mistake, mistake of fact, mistake of law, misperception, misunderstanding, misprediction, ignorance, incomplete information, assymetric information, forgiveness, excuse, reformation, contract, tort, criminal law, restitution

JEL Classifications: D80, D82, D84, K10, K11, K12, K13, K14

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