Guido, you're still talking around the issue. How can there be a mutual mistake where every essential element of the contract was based on facts both sides understood. Again, taking it back to Contracts I: Offer: In return for your organization holding its event at Oklahoma Joe's, we'll pay 10% of the gross proceeds to your organization. Acceptance: Okay, we'll host our event at Oklahoma Joe's. Consideration: The promise to pay 10% is consideration for the promise to hold the event at Joe's. The promise to hold the event at Joe's is consideration for the promise to pay 10%. The deal was agreed to and even performed by the organization.
So, what is the mistake? How is that mistake mutual? How is a mistake by Oklahoma Joe's as to its own motivations relevant to the contract? If there is no mutual mistake, how are the remedies for mutual mistake relevant? Is this not just a case of buyer's remorse?
I am well aware of the jury instructions you cite. They don't support your argument. The first element of 23.35 requires the party seeking to get out of performing its contract to prove that it was not negligent in entering into the contract in the first place. In this case if Joe's only wanted to support Christian organizations, it should have said so up front, something it has not claimed to have done. It also could have conducted minimal research on the organization seeking to hold an event there and declined to enter into the agreement based on that research. That didn't happen. The third element of 23.35 requires the mistake to be common to both parties or that there was fraud or unfair conduct on the other party's part. Joe's did not claim fraud. There can be no serious claim that both parties were mistaken about the organization's non-religious nature. So how does 23.35 support Oklahoma Joe's claim for rescission?
The fraud instruction in 23.33, if it applies at all, is a double-edged sword. Only if the organization falsely claimed to be a Christian organization or if Joe's stated up front that it only supported Christian organizations, the organization might be guilty of fraud for not disclosing its atheist roots, excusing Joe's from performing. Since our hypothetical here is based only on facts that have been disclosed by the parties to the dispute, and since Joe's has not said that the organization intentionally misled it, only that it didn't want to support an atheist organization, it can't very well claim fraud. On the other hand, for Joe's to wait until the event was taking place to pull out of the deal shows such egregious bad faith that it might infer an intent to not perform the contract at the time it was entered into. That would be more than a mere breach of contract but would be the tort of fraudulent inducement. Prudent business owners are very careful about such things.
You didn't previously mention damages as a problem. Damages are simple enough to demonstrate, especially because the event was taking place when management backed out of its deal. Multiply the gross proceeds of sales to the participants times the agreed-upon percentage, plus pre-judgment interest. Perhaps offset it by the fair value of the publicity the organization has received.
Only by making up a misrepresentation claim out of whole cloth can Joe's defend itself. It is very difficult to claim misrepresentation when the other party has accurately published its position. It was simple enough for posters on this forum to find out what the organization stood for. It would have been equally simple for Joe's. They didn't bother, which takes them out of the purview of 23.35.
I am not talking around anything. It's just that you were all over the map on the law in my opinion. I was also responding to your issues by setting straight your legal points of view, as well as positing several questions which work against your points. For example:
Mistake. You have got to be kidding as to your analysis on mistake being mutual. Mutual mistakes are frequently found when one party fails to provide enough information to allow the other party to make an informed decision. This would be the classic case if CQ left out information it knows would tip off folks like "Christian" Joes of their true atheist beliefs.
Fraud. You only set out maybe 3 of the factors to establish that defense to contract, presumably the fraud towards inducement to contract. You omitted several elements or even factors to be considered that I had to clarify for the benefit of those reading this (and perhaps trying to learn something). Here is a citation to general authority I frequently cited to on this fraud and deceit question:
McCain v. Combined Communications Corp. of Oklahoma, Inc., 1998 OK 94, ¶ 11, 975 P.2d 865, 867:
a) Defendant made a material representation; b) that the representation was false; c) Defendant knew it was false or made it recklessly, without regard for its truth; d) Defendant made it with the intention that Plaintiff act upon it; and e) injury was suffered by Plaintiff as a result.
Citing, inter alia, 76 O.S. § 3; See also, Bankers Trust Co. v. Brown, 2004 OK CIV APP 1, ¶ 14,
Consideration. I have no idea what the terms of the contract were, if both sides came out and said, "You give me this, I give you that", OR if Joes just said, "yeah, I like to help kids, have your fundraiser here". If it was the latter--which I believe is the truth and not some contrived/factually devoid tit for tat--that is
motive and not consideration. No contract. For everyone, this is what Oklahoma's jury instruction 23.8 says about consideration:
The law will enforce a promise only if the person to whom the promise was made gave something of value or promised to give something of value in exchange for the promise. This is the requirement of consideration.
If you find that [state what is claimed to be the consideration for the contract], then you should find that the requirement of consideration was satisfied, and you should go on and decide the other issues in the case. Otherwise, you must find that there was no contract.
Damages. I raised this issue because folks having been talking about Joes paying CQ money for canceling the event. Also, you mentioned that Joes made a representation to share the proceeds. I just assumed you would argue that if there was a breach, CQ would presumably argue that they were out the consideration given for the contract and should be allowed to recover that.
I want to add some info on mutual mistake of fact and unilateral mistake, but I am behind now.
