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What Can You Do When Your Contract Does Not Reflect What You Agreed
If you are entering into a contract which does not reflect terms you have agreed there are options you can take.
Rectification
A contract can be amended by the Court to reflect what the parties actually intended. A judge will look at the contract in the round taking into account the beliefs of the parties and not simply seek to interpret the contract at face value.
Rectification is only available in limited situations such as:
(i) Mutual mistake – this is where up until the actual signing of the contract all the parties believe it is meant to achieve the same thing. However, the final version of the contract then fails to give effect to their common intentions.
(ii) Unilateral mistake – the situation here is where Party 1 was mistaken as to whether the contract did or did not contain a particular term. Party 2 was both aware of this and knew that this was due to a mistake by Party 1. Party 2 allow Party 1 to enter into the contract and also benefit from the mistake.
In certain circumstances rectification can be avoided and an error in a contract can be corrected by a legal remedy known as construction. In order to correct such an error, the error and the correction must be clear on the document itself.
Early troubleshooting
In order to avoid having to rectify a contract or ask for the Court to consider construction, you and your legal advisors should always consider the following:
- Have clear heads of terms set out in writing.
- Record changes to heads of terms in writing.
- Avoid informal agreements (either verbal or emails which do not have any obvious conclusion and agreement between both sides).
- It is always sensible to head correspondence “subject to contract” until the agreement is in its final stage and ready for signing.
- Read the final version of the contract very carefully before signing to make sure it does say and do what you intended.
Negotiating contractual terms can be problematic. For further information and advice contact Andrew Weinberg
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