Rectifying the Course of Rectification

Publication Date01 May 2012
AuthorPaul S. Davies
device of a perpetual lease could then be used to create binding positive
covenants which need not even touch and concern land.72 Should that occur,
English common law would be the first legal system to come close to effectively
abolishing the numerus clausus principle and permit parties freedom to create
almost any proprietary ‘fancy’ of their choosing.73 Furthermore, apart from
effectively contradicting the raison d’etre of the Law of Property Act 1925, an
abolition of the rule would permit the creation of a perpetual lease with a rent
obligation, effectively circumventing the Rentcharges Act 1977.
Rectifying the Course of Rectification
Paul S. Davies*
In Daventry District Council vDaventry & 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 inappro-
priate: 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
In Chartbrook Ltd vPersimmon Homes Ltd,1(Chartbrook) Lord Hoffmann, in his
final speech before retirement, considered a variety of issues concerning the
interpretation and rectification of commercial contracts. However, important
areas of uncertainty remain.As Sir Richard Buxton has observed,‘[m]uch is thus
left in the air, not only with regard to the relationship between construction and
rectification, but also within the jur isprudence of rectification itself.’2There are
three main difficulties. First, what is the scope afforded to rectification?The more
‘liberal’ approach to the interpretation of commercial agreements, driven in no
small part by Lord Hoffmann himself,3means that many mistakes are now
72 Whilst there are concerns over the efficacy of the current regime, such a development would be
significantly more drastic than the recommendations of the Law Commission in its report Making
Land Work: Easements, Covenants and Profits à Prendre, Report, Law Com No 327 (2011). See
particularly 5.44–5.70.
73 Cf B. Rudden, n 18 above, 239.
*Fellow, Gonville and Caius College, Cambridge.I am grateful to Neil Andrews,Richard Hooley,Janet
O’Sullivan and an anonymous referee.The usual disclaimer s apply.
1 [2009] UKHL 38; [2009] 1 AC 1101. For notes of the case, see D. McLaughlin, (2010) 126 LQR
10; J. O’Sullivan, (2009) 68 CLJ 510;P. Davies,(2009) LMCLQ 420.
2 Sir R. Buxton, ‘ “Construction” and rectification after Chartbrook’ (2010) CLJ 253, 261.
3 See eg Investors Compensation Scheme Ltd vWest Bromwich Building Society [1998] 1 WLR 896;
Chartbrook Ltd vPersimmon Homes Ltd [2009] UKHL 38; [2009] 3WLR 267.
Rectifying the Course of Rectification
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
412 (2012) 75(3) MLR 387–436

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