A ruling in line with that in Cundy v Lindsay[7]would allow Joey to regain his equipment from Chandler. This would see the contract between Joey and the rogue deemed to be void

Where party A makes a contract with party B believing B to be C the law makes a division between contracts where the parties are in face to face (inter praesentes), and, those where the parties are not physically in each others presence (inter absentes). In the former category it is presumed that the mistaken party intends to deal with the person actually before them, regardless of the identity this party may have assumed. As Joey had dealt personally with Ross Walters, it is not unreasonable to conclude that he intended to deal with the person presented before him. In the latter category this presumption is easier to refute. If the parties are dealing by correspondence (e.g. letters), and one of those parties is mistaken as to the identity (not the attributes) of the other, and the other party knows this, then the contract will be void for mistake.

The ‘face to face’ presumption was evident in the ruling of the court in Lewis v Averay. Lewis was persuaded to sell his car to a "Richard Greene", supposedly a famous television actor. Lewis accepted a cheque from the so-called "Richard Greene". The rogue then quickly sold the car on to Averay. Meanwhile his cheque bounced and Lewis was left without a car or money. The rogue could not be found. Lewis found Averay and "his" car and brought an action in tort to recover the car or its value. Even though the rogue had made a false representation as to his identity, a contract was still made between himself and Lewis. Under this contract title passed to the rogue, which was then transferred to Averay before the contract was avoided by Lewis. Lewis had only investigated the identity of the rogue to determine his creditworthiness (an attribute).

Here the court found that the plaintiff intended to deal with the person in front of him and that there was no evidence to suggest otherwise. Consequently the court ruled that since Averay had bought the vehicle bona fide without any knowledge of the fraud, that he had acquired good title to that property and was entitled to retain it. Lord Denning MR stated that he did not accept that a mistake as to identity caused a contract to be void. He followed the Courts previous rulings in cases involving King’s Norton Metal Co  and Phillips  which ruled such contracts voidable and not void. A ruling of this type would see Chandler retain the cricket gear and Joey have no right to demand its return.

Joey’s claim to have the cricket gear returned would be better served if he had dealt with Ross via correspondence only. In this case the court would look to the ruling brought down in the case of Cundy v Lindsay. Here a rogue by the name of Blenkarn ordered goods in writing from Lindsay & Co. He gave his address as "Blenkarn & Co, 37 Wood Street, Cheapside" and signed the letter in such a way that his name appeared to be "Blenkiron & Co". A highly regarded firm, Blenkiron & Sons, operated from 123 Wood Street. This firm was well known to Lindsay who without determining their correct address dispatched the goods to "Blenkiron & Co, 37 Wood Street, Cheapside." Blenkarn sold some of the goods to Cundy who resold them all to different persons before the fraud was discovered.

It was held that Lindsay knew nothing of Blenkarn and intended to deal only with Blenkiron. This was a fact known to Blenkarn. There was no common intention which could lead to any contract between the parties. As a result, the title of the goods remained with Lindsay and Cundy had no claim to them. Lord Cairns stated that Lindsay knew nothing of Blenkarn and had no intention of dealing with him. There was no consensus of minds that could lead to any agreement between them. The House of Lords held the contract to be void. A void contract cannot give rise to any contractual rights or liabilities. Neither of the parties can enforce any promises made under a void contract. Similarly neither party can recover any damages from the other for a breach of such a contract. An important consequence of the contract being void is that no title can pass under that contract. Should the court rule similarly upon hearing Joey’s case, the contract between Joey and the rogue would be held to be void. Title of the cricket gear never would have passed between these parties. Consequently title could then not have been transferred from the rogue to Chandler.

CONCLUSION

A ruling in line with that in Cundy v Lindsaywould allow Joey to regain his equipment from Chandler. This would see the contract between Joey and the rogue deemed to be void. As such, title to the goods would not have departed form Joey to the rogue and never have come to rest with Chandler. A stronger possibility is that the reasoning of the ruling in Lewis v Averay would be followed. This would result in the contract between Joey and the rogue being declared voidable only. Here Joey failed to rescind this contract before the rogue passed title on to Chandler. Therefore Chandler gained rightful ownership of the goods with Joey possessing no valid claim for their return to him. Based on this I would advise that it is unlikely that Joey would be found to be entitled to demand the return of the cricket gear from Chandler.