Facts that a party seeking rectification must prove before the court can rectify the contract

Rectification is the process wherea document, the meaning of which has already been ascertained is rectified so that it gives effect to the intention of the parties.
It is a remedy concerned with defects not in the making but in the recording of a contract. It is equitable in character and therefore discretionary.
Before the court can order rectification the party seeking the same must prove certain facts, namely:

  • Convincing proof or evidence showing that the document fails to record the intention of the parties. (Joscelyne V. Nissen (1970). A High degree of proof is needed so that certainty is not undermined.
  • The document does not embody the intention of both parties.
  • The document was proceeded a concluded contract or a continuing common intention.
  • The applicant has sought rectification of the document at the earliest possible opportunity or instance and the defendant is not a bona fide purchaser for value without notice. This is because delay defeats equity.
(Visited 121 times, 1 visits today)
Share this:

Written by 

Leave a Reply