Birke Häcker

Mistakes in the Execution of Documents: Recent Cases on Rectification and Related Doctrines

It is well known that the equitable remedy of rectification is all about bringing documents into line with the intention of the parties executing them.1 What is less clear is how this ‘intention’ is to be ascertained, to what extent the doctrine of rectification is affected by changes in the courts’ approach towards the construction of documents, and how rectification fits in with other remedies that are often invoked at the same time. A number of recent cases now give us occasion to revisit rectification and to examine its relationship with related doctrines. It will be convenient to begin by outlining the basic principles of rectification, paying particular attention to the operation of the doctrine in gratuitous transactions (often described as ‘unilateral’ transactions) as compared with transactions for value (often described as ‘bilateral’ transactions). We will then consider the arguably diminishing role of rectification in light of the development of new canons of interpretation. How much room—if any—is left for the correction of expression mistakes by means of rectification once we take into account the gradual erosion of the so-called ‘parol evidence rule’ coupled with a more ‘contextual’ approach to construction? Next is the relationship