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B-127066, AUG. 24, 1956

B-127066 Aug 24, 1956
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M. SIEGEL: REFERENCE IS MADE TO A LETTER OF JULY 9. THAT THE DISCLAIMER OF WARRANTY IS NOT FOR APPLICATION SINCE THE PROPERTY SOLD WAS ENTIRELY DIFFERENT FROM THAT ADVERTISED FOR SALE. SINCE ALL PERTINENT FACTS RELATIVE TO THE ISSUE INVOLVED IN THIS CASE WERE FULLY AND COMPLETELY SET FORTH IN OUR DECISION OF MARCH 29. WITH RESPECT TO THE ALLEGED MUTUAL MISTAKE FEATURE OF THE CASE IT SHOULD BE POINTED OUT HERE THAT THE SPECIFIC ARTICLES OFFERED FOR SALE WERE "PARACHUTES" AND NOT CLOTH. WHILE THERE WAS A DEVIATION AS TO A CERTAIN DETAIL OF THE DESCRIPTION. IT IS HIGHLY QUESTIONABLE WHETHER SUCH A DEVIATION WOULD BE CONSTRUED AS CONSTITUTING A MUTUAL MISTAKE. THE MISTAKE THEORY JUST AS READILY COULD HAVE BEEN JUSTIFIED IN ANY OF THOSE CASES AS IT COULD BE HERE.

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B-127066, AUG. 24, 1956

TO J. M. SIEGEL:

REFERENCE IS MADE TO A LETTER OF JULY 9, 1956, IN YOUR BEHALF, FROM RICE AND KING, REQUESTING RECONSIDERATION OF OUR DECISION DATED MARCH 29, 1956, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $2,939.30, UNDER CONTRACT NO. (45-613/-S-55-111, DATED MARCH 3, 1955.

THE REQUEST FOR RECONSIDERATION APPEARS TO BE BASED PRIMARILY ON THE ATTORNEYS' CONTENTIONS THAT THE TRANSACTION INVOLVED A MUTUAL MISTAKE WHICH VITIATED THE CONTRACT; THAT THE DISCLAIMER OF WARRANTY IS NOT FOR APPLICATION SINCE THE PROPERTY SOLD WAS ENTIRELY DIFFERENT FROM THAT ADVERTISED FOR SALE; AND THAT THE PURCHASER HAD THE RIGHT TO RELY ON THE CLEAR AND UNAMBIGUOUS TERMS OF THE BID INVITATION.

SINCE ALL PERTINENT FACTS RELATIVE TO THE ISSUE INVOLVED IN THIS CASE WERE FULLY AND COMPLETELY SET FORTH IN OUR DECISION OF MARCH 29, 1956, THEY NEED NOT BE REPEATED AT THIS TIME.

WITH RESPECT TO THE ALLEGED MUTUAL MISTAKE FEATURE OF THE CASE IT SHOULD BE POINTED OUT HERE THAT THE SPECIFIC ARTICLES OFFERED FOR SALE WERE "PARACHUTES" AND NOT CLOTH, NYLON, RAYON, ETC. THEREFORE, WHILE THERE WAS A DEVIATION AS TO A CERTAIN DETAIL OF THE DESCRIPTION, IT IS HIGHLY QUESTIONABLE WHETHER SUCH A DEVIATION WOULD BE CONSTRUED AS CONSTITUTING A MUTUAL MISTAKE. BE THAT AS IT MAY, HOWEVER, THE GENERALLY ACCEPTED MUTUAL MISTAKE PRINCIPLE WOULD NOT APPEAR TO BE FOR APPLICATION UNDER CONTRACTS CONTAINING EXPRESS DISCLAIMERS OF WARRANTY AND INSPECTION CLAUSES SUCH AS PROVIDED IN THE SUBJECT CONTRACT. IN SUPPORT OF THIS CONCLUSION THERE APPEARS NO NEED TO REFER FURTHER THAN TO THE COURT CASES CITED TO YOU IN OUR DECISION OF MARCH 29, 1956. UNQUESTIONABLY, THE MISTAKE THEORY JUST AS READILY COULD HAVE BEEN JUSTIFIED IN ANY OF THOSE CASES AS IT COULD BE HERE.

IN VIEW OF THE FOREGOING, AND SINCE NEITHER THE COURT CASE NOR THE DECISIONS OF OUR OFFICE REFERRED TO BY THE ATTORNEYS INVOLVED CONTRACTS WHICH CONTAINED DISCLAIMERS OF WARRANTY AND INSPECTION PROVISIONS, AS ARE HERE INVOLVED, THE CONTENTION THAT THE CONTRACT IS VITIATED BY REASON OF A MUTUAL MISTAKE MAY NOT BE ACCEPTED. THE DISCLAIMER OF WARRANTY IS FOR FULL APPLICATION TO SUCH A MISDESCRIPTION OF DETAILS AS OCCURRED IN THIS CASE AND THE PURCHASER'S RIGHT TO RELY EXCLUSIVELY ON THE DESCRIPTION IN THE INVITATION IS SUBJECT TO THE EXPRESS QUALIFICATIONS OF ALL OF THE OTHER CLAUSES OF THE CONTRACT.

ACCORDINGLY, UPON REVIEW, OUR DECISION OF MARCH 29, 1956, IS AFFIRMED.

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