Rectification (law)


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, which means the circumstances where it can be applied are limited.
In the United States, this remedy is commonly referred to as reformation.

England

In English law, the rule was summarised in Fowler v Fowler 4 DeG & J 250 at 264 as follows:

Canada

In the Canadian case of Bercovici v Palmer 59 DLR 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 this evidence and concluded that he was "satisfied beyond any fair and reasonable doubt that the was not intended by either party to be included in their transaction."
On appeal, the court added that in cases where rectification is an issue, it is within the purview of the court to consider conduct subsequent to the contract.

Australia

Rectification is available where the parties intended to give effect to the whole of an antecedent agreement in the written contract and that 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.