David McLauchlan, ‘Refining Rectification’

Despite claims that the modern approach to interpretation of contracts has usurped much of its function, the equitable jurisdiction to rectify a written contract on the ground of common mistake remains one of the most practically important areas of the law of contract. Rectification claims are a regular feature of modern commercial litigation, very often of course in tandem with interpretation disputes. Unfortunately, however, recent cases demonstrate that the law governing this form of equitable relief has become extraordinarily, and needlessly, complex. The purpose of this article is to suggest that this complexity can be resolved by returning to first principles of the law of contract formation, particularly those concerning the meaning of the objective test and the relevance of the parties’ actual or subjective intentions.

McLauchlan, David, Refining Rectification (January 1, 2014).

First posted 2014-03-29 09:23:08

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