Refining Rectification

29 Pages Posted: 28 Mar 2014  

David McLauchlan

Victoria University of Wellington - Faculty of Law

Date Written: January 1, 2014

Abstract

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.

Keywords: Contract, Rectification, Interpretation, Formation

JEL Classification: K12

Suggested Citation

McLauchlan, David, Refining Rectification (January 1, 2014). Available at SSRN: https://ssrn.com/abstract=2416568 or http://dx.doi.org/10.2139/ssrn.2416568

David McLauchlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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