Contracts in writing: Issues in rectification for mistake and rescission for misrepresentation

This thesis examines issues concerning the rectification of contractual documents for mistake and the rescission of contracts for misrepresentation. The principles underlying these two remedies are unclear. It has been suggested that: rectification is an instance of subjectivity trumping objectivity; rectification is a by-product of ‘partial rescission’; and a claimant may rescind a contract for misrepresentations even without believing in them. This thesis demonstrates that: contract law’s ‘objective principle’ underlies not just contractual interpretation and formation but also rectification and rescission; rectification is not a by-product of ‘partial rescission’; and a claimant must believe in the misrepresentations in order to rescind. This thesis also justifies the rule that unilateral mistake rectification ensues only if the defendant knew of the claimant’s mistake. Since misrepresentations are mistakes induced by mis-statements, examining rectification and rescission together will usefully demonstrate how courts should respond holistically where these concepts overlap. Where claimants contract with defendants because the defendants misrepresented that their contractual document contains C terms when in fact it contains D terms, and the defendants know of the claimants’ mistake, the claimants should have a choice. The claimants may uphold the contract on D terms; rescind the contract on D terms and walk away; or uphold the contract on C terms (and may get the document rectified to reflect C terms). Given their importance as remedies, this thesis also examines whether rescission and rectification may be precluded by a contractual clause in the very contract or document which is being rescinded or rectified.