difference between mistake and misrepresentation

Hello,

Misrepresentation occurs when a person makes an untrue assertion of fact (or in some cases an omission of fact). It is based on someone's actions whereas mistake is where someone believes that a fact was true when in fact it was not. It is based on someone's belief.

Usually, when both parties are mistaken about the fact, either party may have the contract voided. The classic case is where the parties contracted to sell and buy a cow that both parties believed to be barren; when it was found that the cow was actually pregnant, the seller sought to take back the cow because it was not what both parties believed it was -- seller won.

Section 18 of the Indian Contract Act, 1872 defines misrepresentation as under: 

Misrepresentation” means and includes –

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that whichis not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or anyone claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is subject of the agreement.

Mistake

‘Mistake’ is not defined in the Indian Contract Act. Section 20, 21 and 22 deals with the concept related to mistake. ‘Mistake’ can be defined as any action, decision or judgement that produced an unwanted and unintentional result. A Mistake is said to have occurred where parties intending to do one thing by error do something else. Phillips v. Brooks Ltd is an English contract law case concerning mistake. It was held in this case that a person is deemed to contract with the person in front of them unless they can substantially prove that they instead of them intended to deal with another person.

The main factor coming into play here is the absence of intent in the case of mistake. 

Thank you