ABSTRACT
This article discusses some issues arising out of the English Court of Appeal’s reconsideration of the requirements for rectification of written contracts on the ground of common mistake in FSHC Group Ltd v Glas Trust Corporation Ltd [2019] EWCA Civ 1361 in the course of which the Court refused to follow Lord Hoffmann’s views on the subject in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101. The issues to be discussed relate to: the ruling that ‘common intention’, while usually referring to the parties’ actual intention, is to be determined objectively where the written contract sought to be rectified was preceded by a binding contract; the new explanation of the Court’s well-known decision in Rose v Pim; the re-interpretation of the contentious requirement for an ‘outward expression of accord’; whether the mere fact that the parties’ intentions were identical at the time of the contract is insufficient for there to be a ‘common intention’; and whether the rationale for rectification on the ground of common mistake differs from that for rectification on the ground of unilateral mistake.
McLauchlan, David, Rectification Rectified? (December 1, 2019). (2020) 36 Journal of Contact Law 131.
First posted 2020-06-12 05:23:57
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