Rectification—mutual mistake

The following Property Disputes practice note provides comprehensive and up to date legal information covering:

  • Rectification—mutual mistake
  • Interpretation or rectification?
  • Common or mutual mistake
  • Common intention
  • Whose mistake?
  • Successors in title?
  • Claims for rectification

Rectification—mutual mistake

Rectification is an equitable remedy by which the court can correct an error of expression where a written document does not match the parties' intention. It is available only in relation to written contracts and other documents. An oral agreement cannot be rectified. This Practice Note explains whether an error can be corrected by interpretation rather than rectification and the elements of a claim for rectification for mutual or common mistake. For more information in respect of a mistake made by one party, see Practice Note: Rectification—unilateral mistake.

Interpretation or rectification?

The starting point in considering a claim for the correction of an error is to ask whether the error can be solved by means of interpretation rather than rectification. At common law, rectification was not available and so the only way in which an error of expression could be corrected was by applying the ordinary rules of interpretation. As a matter of principle, rectification ought not to be granted unless there is no suitable alternative remedy by way of interpretation.

A mistake in a written instrument can, in certain limited circumstances, be corrected as a matter of construction without rectification. Two conditions must be satisfied:

  1. there must be a clear mistake on the face of the instrument (although the court is not confined to reading the document without regard to its background or context), and

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