Rectification CASES

In English law, rectification is an equitable remedy that corrects a written instrument (for example, a contract, deed or settlement) so that it accurately records the parties’ prior agreement or common intention. The court does not make a new bargain; it amends the document to reflect what was actually agreed before it was signed.

Definition and principles

Rectification is available where a written instrument, through mistake, fails to record a concluded common intention (or, in a narrower class of cases, where one party was mistaken and the other acted unconscionably). Equity aims to make the writing conform to the true deal that existed at execution, proved by objective evidence.

When will the court grant rectification?

Common mistake (the usual case). The claimant must show: (i) there was a common intention about a particular term or effect; (ii) that intention was outwardly expressed and shared (not merely uncommunicated thoughts); (iii) the intention continued until execution; and (iv) the instrument fails to record that intention because of a mistake (for example, drafting/transposition errors, wrong version).

Unilateral mistake (exceptional). Rectification may be granted if: (i) the claimant was mistaken about the instrument; (ii) the defendant knew of the mistake (or was wilfully blind) and allowed signature to proceed; and (iii) it would be unconscionable to hold the claimant to the erroneous text.

Voluntary settlements. A deed of gift or settlement can be rectified if it does not implement the settlor’s proven intention; the court requires especially convincing evidence of that intention.

Evidence and standard of proof

The burden is on the claimant and the court looks for convincing proof. Typical materials include marked-up drafts, emails and letters, term sheets, board minutes, comparison of versions, negotiating notes, and consistent post-contract conduct that unmistakably reflects the earlier shared intention. Boilerplate such as entire-agreement or no-oral-modification clauses does not bar rectification, because the remedy addresses a prior consensus that the writing failed to capture.

Limits and defences

• Rectification is not a tool to improve a bad bargain or to add a term that was never agreed. If the “agreement” was too vague or still under negotiation, the claim fails.
• If the language can fairly be construed to give the intended effect, the court prefers interpretation (construction) over rewriting; rectification is a last resort.
• Equitable bars apply: delay (laches), acquiescence, and prejudice to third parties. A bona fide purchaser for value without notice should not be disadvantaged.
• Registration regimes matter. Rectifying a land contract or deed is distinct from “rectification of the register” under the Land Registration Act 2002 (a separate statutory process with its own tests and indemnity rules).

Common examples

• Scrivener’s error: the wrong interest rate, date or definition was copied into the execution draft despite an agreed term to the contrary in earlier drafts.
• Mis-pasted clause: a security or guarantee schedule omits an agreed asset or party because the wrong schedule was attached at signing.
• Settlement deeds and tax planning: a deed fails to implement the settlor’s documented intention; rectification fixes the text but is not a device to undo deliberate choices merely because of unexpected tax.

Remedies and procedure

The court orders that the instrument take effect as if it had always contained the corrected wording, and may direct the parties to execute a conforming document. Plead with precision: set out the exact prior intention, identify the mistake, and exhibit the proposed corrected text (for example, a comparison showing tracked changes).

Relationship to neighbouring concepts

Mistake (contract law): concerns validity/avoidance; rectification assumes a valid agreement and fixes the record. Construction/interpretation: gives effect to the words used; rectification changes the words to match the true deal. Non est factum: a narrow defence where a signer was fundamentally mistaken as to the nature of the document; different to rectification. Rectification of the register: a land-registration remedy, not the same thing.

Practical importance

For claimants, assemble a clean chronology and documentary trail showing a shared, continuing intention and the precise mis-recording. For defendants, test whether the “intention” was ever truly agreed, whether it persisted to execution, and whether construction (without rewriting) already yields a fair reading. Consider third-party impacts and whether tailored declarations or partial rectification would do justice.

See also: Interpretation (construction); Entire agreement clauses; No oral modification; Mistake; Deeds and formalities; Voluntary settlements; Land Registration (rectification of the register).