Q&As

Would you agree that the 3rd Edition of the Standard Commercial Property Conditions (and the 2nd Edition before them) refer to 'rescission' in scenarios where 'termination' would seem more appropriate? Should we include in contracts incorporating these conditions, an interpretation provision which clarifies that references to 'rescission' include 'termination'?

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Published on LexisPSL on 04/07/2017

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Would you agree that the 3rd Edition of the Standard Commercial Property Conditions (and the 2nd Edition before them) refer to 'rescission' in scenarios where 'termination' would seem more appropriate? Should we include in contracts incorporating these conditions, an interpretation provision which clarifies that references to 'rescission' include 'termination'?

Would you agree that the 3rd Edition of the Standard Commercial Property Conditions (and the 2nd Edition before them) refer to 'rescission' in scenarios where 'termination' would seem more appropriate? Should we include in contracts incorporating these conditions, an interpretation provision which clarifies that references to 'rescission' include 'termination'?

The remedy of rescission should be distinguished from the remedy of termination for breach of contract. Rescission is not available as a remedy for breach of contract (though see below re a repudiatory breach).

The term rescission is used to describe two very different remedies:

  1. rescission ab initio, and

  2. rescission for breach (or more accurately discharge by breach)

Rescission ab initio is where the contract is treated as if it never existed. This remedy is available:

  1. where the contract was entered into on the basis of a common/mutual mistake, or

  2. where a misrepresentation by one party induced the other to enter into it

Rescission for breach is available where one party accepts the other's repudiatory breach. A repudiatory breach is a breach of contract that goes to the very core of the contract and gives the innocent party the right to treat the contract as being disregarded and entitling the innocent party to refuse to be bound by its terms. Repudiation of a contract occurs where one party to it communicates to the other (through words or conduct) that

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