An agreement remains enforceable where both parties accept clear terms; misrepresentation claims fail without evidence of mistake.

[18] The counsel for the plaintiff urged this Court to follow the principle of law as laid down in the case of Hartog v. Colin & Shields [1939] 3 All ER 566, and cited the following passage from the judgment:

"The Plaintiffs must have known that the offer did not express the true intention of the Defendants and that the apparent contract was therefore void. The Plaintiff could not reasonably have supposed that the offer expressed the real intention of the persons making it, and must have known it to have been made by mistake. The Plaintiff did not, by his acceptance of the offer, make a binding contract with the Defendants."

[19] I have perused the judgment of Singleton J from the King's Bench Division and the principles laid down in Hartog v. Colin Shields,and I found the counsel for the plaintiff's reliance on the case was misconceived.

[20] In Hartog v. Colin Shields, the defendants contracted to sell to the plaintiff 30,000 Argentine hare skins. The defendants made a mistake in his offer by offering to sell the hare skins at certain prices per pound (by the weight) instead of prices per piece. Negotiation took place prior to the sale, and reference had always been made to the price per piece and never to the price per pound. Expert evidence revealed that Argentine hare skins were generally sold at prices per piece, not per pound. The Court held 'the plaintiff could not reasonably have supposed that the offer expressed the real intention of the persons making it, and must have known it to have been made by mistake. The plaintiff did not, by his acceptance of the offer, make a binding contract with the defendants.'

[21]Hartog v. Colin & Shield is a landmark decision for a contract where a party had made a mistake, i.e. a unilateral mistake, and the other party took advantage of the mistake by benefiting from it. In this circumstance, the Court would be reluctant to recognise the right of the other party who took advantage of the mistake and benefitted from it. The innocent party who had made the mistake would in law be able to rescind the agreement.

[22] In the present case, the defendant did not make a mistake as to the unit price and neither did the plaintiff. The defendant did not take advantage of any mistake made by the plaintiff. Hence, the reliance of the plaintiff's counsel in the principle of law laid down in Hartog v. Colin & Shield was misconceived.

[23] In Malaysia, s 23 of the Contracts Act states that 'a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.' In the event both parties are under mistake as to a matter of fact, such an agreement is void. That mistake as to be a matter of fact essential to the agreement, not just any fact (see s 21 of the Contracts Act 1950 ).

[24] In the present case, this Court could not find any party had made a mistake as to the fact of the unit price. The quotation from the defendant to the plaintiff for the unit price, ie RM6.50 per ft², for the installation of the interlocking pavers including machinery charges was very clear.

[25] The plaintiff's PO which was an acceptance of the offer was absolute and unqualified. The PO stated clearly the unit price was RM6.50 per ft² for the work of installation of the interlocking pavers including machinery charges to be rendered by the defendant. Relying on the PO, the defendant proceeded to mobilize its machines and materials to the site and commenced work.

[26] The contemporaneous documents of the parties disclosed the fact that the parties clearly intended to enter into an agreement based on the unit price of RM6.50 per ft² as