Cooper v Phibbs (1867) LR 2 HL 149

A nephew leased a fishery from his uncle. His uncle died. When the lease came up for renewal the nephew renewed the lease from his aunt. It later transpired that the uncle had given the nephew a life tenancy in his will. The lease was held to be voidable for mistake as the nephew was already had a beneficial ownership right in the fishery.

This is an instance ofres sua. Normally where a contract is found to have been entered under a common mistake the contract will be rendered void as oppose to voidable. The lease was held to be voidable rather than void as the claim was based in equity as it related to beneficial ownership as oppose to legal ownership.

This caused some uncertainty as to whether there was equitable relief for mistake which was wider than that which existed at common law. In particular Lord Denning argued that such a position of the law existed in Solle v Butcher.

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