Section 11.15 Mutual Mistake

• Library: Settling Cases 2014

An agreement may be rescinded on the ground of mutual mistake. A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact on which they based their bargain. Husch & Eppenberger, LLC v. Eisenberg, 213 S.W.3d 124, 134 (Mo. App. E.D. 2006). Mutual mistake means that “both parties have memorialized in writing what neither actually intended.” Cardinal Partners, LLC v. Desco Inv. Co., L.L.C., 301 S.W.3d 104, 110 (Mo. App. E.D. 2010). Mutual mistake must be established by clear, cogent, and convincing evidence.“[A] mutual mistake is one common to both or all parties where each labors under the same misconception respecting a material fact, the terms of the agreement, or the provisions of the written instrument designed to embody such agreement.” R&R Land...