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 gra ...
,
[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 territori ...
, the remedy is commonly referred to as reformation.
England
In
English law, 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 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. One of the parties later tried to assert that the inclusion was intended, but the trial
judge 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, 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.
[.]
References
See also
*Bird, Roger: ''Osborn's Concise Law Dictionary'', London,
Sweet & Maxwell
Contract law
English law
Law of Canada
Legal terminology
Judicial remedies
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