Rectification is a remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first place. It is an

equitable remedy Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VIII to provide more flexible responses to changing social conditions than was possible in precedent-based common law. Equitable remedies were gran ...

,Walker Morris
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published 29 November 2013, accessed 13 June 2021 and so the circumstances on which it can be applied are limited. In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

, the remedy is commonly referred to as reformation.

England

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

, the rule was summarised in ''Fowler v Fowler'' (1859) 4 DeG & J 250 at 264: :"Only after the court has been satisfied by evidence which leaves no 'fair and reasonable doubt' that the deed impeached does not embody the final intention of the parties. This evidence must make it clear that the alleged intention to which the plaintiff asks that the deed be made to conform, continued concurrently in the minds of all the parties down to the time of its execution; and the plaintiff must succeed in showing also the precise form in which the instrument will express this intention." A less-demanding process following the contractual construction principle of

misnomer A misnomer is a name that is incorrectly or unsuitably applied. Misnomers often arise because something was named long before its correct nature was known, or because an earlier form of something has been replaced by a later form to which the name ...

is also available under English law.

Canada

In the

Canadian Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...

case of ''Bercovici v Palmer'' (1966) 59 DLR (2d) 513, a lawyer's "inexplicable error" extended a conveyance of real property to include a

cottage A cottage, during Feudalism in England, England's feudal period, was the holding by a cottager (known as a Cotter (farmer), cotter or ''bordar'') of a small house with enough garden to feed a family and in return for the cottage, the cottager ...

. One of the parties later tried to assert that the inclusion was intended, but the trial

judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

did not believe that evidence and concluded that he was "satisfied beyond any fair and reasonable doubt that the (cottage) was not intended by either party to be included in their transaction." On

appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...

, the court added that in cases if rectification is an issue, it is within the purview of the court to consider the conduct subsequent to the contract.

Australia

Rectification is available if the parties intended to give effect to the whole of an antecedent agreement in the written contract and, by common mistake, they failed to do so.. However, the existence of an antecedent agreement is not essential to the grant of relief by way of rectification. It may be granted in cases in which the instrument sought to be rectified constitutes the only agreement between the parties but does not reflect their common intention. The plaintiff needs to advance 'convincing proof' that the written contract does not embody the final intention of the parties. The omitted ingredient must be capable of such proof in clear and precise terms..

England

Canada

Australia

References

See also