Lord Toulson gives the TECBAR Annual Lecture
Does Rectification require Rectifying?
31 October 2013
Rectification is an equitable means of correcting the text of a written form of contract or
other legal instrument by changing or inserting words which the court is satisfied have
been included or omitted by mistake. A mistake may be either mutual or unilateral, and
the courts have developed different rules depending on whether both parties shared a
common mistake or only one party was mistaken.
The interface between the law governing the construction of a written contract and the
rectification of a written contract has changed over the years. Up to the 19th century, if a
written agreement appeared to be complete and not ambiguous, the court would not
allow oral evidence to be given or extrinsic matters of any kind to be taken into account
as an aid to its construction. This was known as the “parol evidence” rule, but its
operation was not confined to oral evidence. In Shore v Wilson1
Tindal CJ said:
“the general rule I take to be, that where the words of any written instrument are
free from ambiguity in themselves … such instrument is always to be construed
according to the strict, plain, common meaning of the words themselves; and
that in such a case evidence dehors the instrument, for the purpose of explaining it
according to the surmised or alleged intention of the parties to the instrument, is
utterly inadmissible.”
This strict common law rule was partially alleviated by the development of the equitable
remedy of rectification, but initially this was confined to cases where there was an
antecedent contract from wh
Lord Toulson gives the TECBAR Annual LectureDoes Rectification require Rectifying?31 October 2013Rectification is an equitable means of correcting the text of a written form of contract orother legal instrument by changing or inserting words which the court is satisfied havebeen included or omitted by mistake. A mistake may be either mutual or unilateral, andthe courts have developed different rules depending on whether both parties shared acommon mistake or only one party was mistaken.The interface between the law governing the construction of a written contract and therectification of a written contract has changed over the years. Up to the 19th century, if awritten agreement appeared to be complete and not ambiguous, the court would notallow oral evidence to be given or extrinsic matters of any kind to be taken into accountas an aid to its construction. This was known as the “parol evidence” rule, but itsoperation was not confined to oral evidence. In Shore v Wilson1 Tindal CJ said:“the general rule I take to be, that where the words of any written instrument arefree from ambiguity in themselves … such instrument is always to be construedaccording to the strict, plain, common meaning of the words themselves; andthat in such a case evidence dehors the instrument, for the purpose of explaining itaccording to the surmised or alleged intention of the parties to the instrument, isutterly inadmissible.”This strict common law rule was partially alleviated by the development of the equitableremedy of rectification, but initially this was confined to cases where there was anantecedent contract from wh
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