Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
8 Cards in this Set
- Front
- Back
|
Intro |
Discretionary, equitable remedy permitting the correction of an instrument which has failed to record the true intention of the parties. It operates as an exception to the parol evidence rule. |
|
|
1 - Mutual Mistake |
Traditionally a prior existing contract was demanded in addition to the instrument complained of, as per Mackenzie v Coulson but Irish law overturned this requirement as per Monaghan Co Co. v Vaughan where the intentions of the parties were clear enough so no prior contract was needed. Nissen English approach needing continuing common intention at the time the contract was signed and some form of outward expression of agreement. Rooney v McParland 3 criteria needed; -a concluded agreement antecedent to the flawed instument -this agreement need not be binding in law -agreement is not required where there was a prior agreement on a particular term Irish Life Ass v Dublin Land Sec Rooney criteria adopted in requiring proof that contract does not reflect the common continuing intention of parties |
|
|
Sufficiently Clear Common Intention |
Irish Life P intended to exclude particular site from the sale and this was not properly communicated to D. No common intention. Ferguson v Merchant Banking Ltd liquidator was refused rectification as he was unaware of the lands which he subsequently sought to be excluded from sale. McD v McD must be satisfied as to precisely what the common intention was. Refused here
|
|
|
Common Misapprehension |
If under the same misapprehension but the contract expresses their common intention none the less, then the court will not intervene, as per Frederick Rose Ltd regarding the exact nature of a horse bean. |
|
|
Rectification and 3rd Parties |
A claim cannot be made by 3rd parties to a contract, as in LAC Minerals v Chevron where it was held that whilst privity is not a precondition to grant rectification there must be a real connection for the D to be allowed to rely on that contract. |
|
|
2 - Unilateral Mistake |
One party correctly records a term of the agreement which is then accepted by the other party. Traditionally this did not allow for rectification but it is becoming more flexible. Irish Life v Dublin Land granted if there has been fraud, sharp practice, or it would be simply inequitable to allow a benefit from the mistake Roberts v Leicestershire Co Co move away from the traditional approach - estoppel Riverlate some form of sharp practice is required by the D to allow rectification Thomas Bates v Wyndham's explained the Roberts doctrine in 4 steps' -A wrongly believed the contract contained/excluded a certain term(s) -B knew of A's mistake -B did nothing to tell A -The mistake beneficial to B or detrimental to A Irish Life v Dublin Land D entirely unaware of P's intention to exclude the site. Rectification refused as D did nothing wrong. Sylvan Gold and Tennis P must establish terms agreed to were not written down properly. |
|
|
Onus of Proof |
Nissen a 'convincing proof' was lowered to 'a heavy onus of proof' |
|
|
Discretion |
Nolan v Graves a delicate jurisdiction to be exercised with discretion and care. Refused with a bona fide purchaser for value without notice . |
