RECTIFICATION

If, by mistake, a written instrument does not accord with the true agreement of the
parties, equity has the power to reform or rectify that instrument so as to make it accord with the
true agreement. What is rectified is not a mistake in the transaction itself (the agreement) but
rather a mistake in the way in which that transaction has been expressed in an instrument – the
form of expressing the transaction in writing.

“Courts of equity do not rectify contracts, they… rectify instruments purporting to

have been made in pursuance of the terms of the contract,”Mackenzie v. Coulson
(1869) LR 8 EQ. 368 at 375

Rectification is a discretionary remedy “which must be cautiously watched and jealously

guarded.”: Per Evershed, M.R. in Whiteside v. Whiteside (1950) Ch. 65 at 71.

Conditions for the granting of Rectification

In order to succeed in a claim for rectification, the Plaintiff must show the following:

1. Absence of Alternative Remedy

a) If the desired result can be achieved through other means, rectification will not be
granted. E.g. Where parties would like to insert an addition in the instrument to express
their further intention, the insertion or addition is by itself enforceable as a collateral
contract. Also, where parties voluntarily agree to rectify the instrument, there is no need
to seek rectification by the court.
b) Construction: If the problem is an obvious clerical, typographical or grammatical error,
the court will usually correct it as a matter of construction without ordering rectification,
e.g., an erroneous “not” may be ignored. This is where both the error on the face of the
document, and the intention of the parties, are manifest from the document itself,

2. Mistake

It must be very clearly shown that the parties had come to a final and genuine agreement and
that the instrument had failed to record it. Oral evidence is admissible to prove the agreement.

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The crux of the remedy is proof of what the parties actually had decided at the time of reaching
the agreement and not what they, or one of them, had thought if they had considered the matter
in greater detail or in the light of more information than that available to them. In other words,
the remedy exists to correct, but not to improve, an instrument.

Accordingly, it must be shown that the mistake was a gross mistake. A mistake can either
be a common mistake or unilateral mistake.

a) Common mistake – If the mistake is common to both or all parties to the instrument,
rectification will be granted.
b) Unilateral Mistake- Where one party incorrectly records a term of the agreement,
but the term is bona fide accepted as it is written by the other party, the mistake is
unilateral. The general rule is that there can be no rectification where the mistake is
unilateral.

There are, however, four excerptions to the general rule – four instances where
rectification will be ordered in case of a unilateral mistake.

i) Fraud –The party making the mistake can only obtain rectification if he shows
that the mistake is due to the fraud of the other party.
ii) Estoppel – If one party to a transaction knows that there is a mistake in his favor
in the instrument but does nothing to correct it, he will be precluded from
resisting rectification on the ground that the mistake is unilateral.
iii) Equitable Election – The defendant may be put to an election of either accepting
rectification or submitting to rescission. See: Paget v. Marshall (1884) 28 Ch. D.
255. The Plaintiff made an offer to let certain premises, and, by mistake, he failed
to exclude from his offer the first floor of one of his properties. The defendant
accepted the offer, and a lease which included the first floor was executed. The
plaintiff sued for the rectification of the lease. The court gave the defendant the
option of having the lease rectified or of having the lease set aside altogether.
(NOTE: The court agreed that the defendant had throughout known that there was
no intention of letting the first floor, but he did not find the D guilty of fraud!)
(See: criticisms in SNELL pp. 684-685; HANBURY pp. 639.)

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 iv) Unilateral Transactions – in such a case, a mistake will entitle a person to obtain
rectification. E.g. Deed Poll)

Other cases on unilateral Mistake:

Riverlate Properties Ltd. V. Paul [1975] Ch. 133; (1974) 9 L.Q.R. 439

Roberts & Co. Ltd. V, Leicestershire County Council [1961] Ch. 555

Burden of Proof of Mistake

He who seeks rectification must establish his case by “strong irrefragable evidence”
which means something more than the highest degree of probability. There must be evidence of
the clearest and most satisfactory description that will establish the mistake with a high degree of
conviction, and leave no fair and reasonable doubt upon the mind that the deed does not embody
the final intention of the parties. This heavy burden of proof becomes even more difficult to
discharge in particular circumstances, E.g.

1. With the passage of years – see: Fredensen v. Rothschild [1941} 1 All E.R. 430,
where there was a lapse of over 33 years.;
2. Where the plaintiff is a solicitor who drafted the instrument himself – see: Ball v.
Storie (1823) 1 Sim. St. 210

Instruments that will be rectified

1. Mercantile documents such as policies of marine insurance

2. Bills of exchange
3. Transfer of shares
4. Conveyancing documents
5. Consent Order (Which for this purpose is treated as an agreement interparties)

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 BUT NOTE: Instruments that will not be rectified:

1. The Memorandum and articles of association of a company will not be rectified. They
are inter alia a contract between the company and its members. They can only be
amended by relevant resolution – Shareholders Resolution.
2. A will cannot be rectified save for fraud. Where no fraud – codicil.
3. The Constitution
4. Acts of Parliament

Defences to an action for Rectification

1. A person cannot claim rectification of a contract if it is no longer capable of

performance. “Equity does not act in vain.”
2. The remedy will not be granted to the prejudice of bona fide purchaser for value
without notice who takes an interest conferred by the instrument. See: Smith v. Jones
[1954] WQLR 1089; Nathan No. 8
3. The remedy is not also available where the plaintiff is guilty of laches or
acquiescence. See: Beale v. Kyte [1970] 1 Ch. 560. This case held that time runs from
the discovery of the mistake.

Bad Defence

Carelessness of the plaintiff is no defence. See: Ball v. Stori (above)

Effect of Order

After rectification is ordered, no new document need be executed. Instead, a copy of the
order of the court is endorsed on the instrument rectified, which will then operate accordingly.
The order/decree has retrospective force. The instrument will be read as if it had originally been
drawn in its rectified form.

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