Rectifying the Course of Rectification

Authors

  • Paul S. Davies

    1. Fellow, Gonville and Caius College, Cambridge
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    • Fellow, Gonville and Caius College, Cambridge. I am grateful to Neil Andrews, Richard Hooley, Janet O'Sullivan and an anonymous referee. The usual disclaimers apply.

Abstract

In Daventry District Council v Daventry & District Housing Ltd [2011] EWCA Civ 1153, the majority of the Court of Appeal held that a contract should be rectified because of a common mistake. This note discusses that decision and recent developments in the law of rectification. It is argued that the approach of the majority in Daventry is unsatisfactory, and that an emphasis upon ascertaining whether the parties have objectively made a common mistake may be inappropriate: rectification should only be granted in order to reflect the parties’ subjective intentions. Such an approach might help to distinguish common mistake rectification from unilateral mistake rectification.

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