Rectification is a discretionary equitable remedy whereby an instrument which does not accord with the intentions of the parties to it, due to fraud or mistake, may be corrected. -It is not the contract that is rectified but the instrument recording the contract. What is instrument?
Instrument is when put writing as the means of giving formal expression to some act, writing expressive of some act, contract, process, as a deed, or contract. It is the role of equity to uphold the intention of the parties in an agreement based on the equitable maxims “Equity looks to the intention, not the form” -If the instrument recording the agreement does not reflect the true intention of the parties die to the common mistake or fraud, the equity will intervene and order rectification of the instrument/written contract. The step in the formation of contract:
1) The negotiation: where we can see the intention of the parties 2) The agreement: In a written form
3) Rectified: rectified the agreement which should be in written form and inline with what have orally agreed upon. Section 30 of Specific Relief Act stated that:
1. Must have a genuine agreement
2. Through fraud or mutual mistake
3. The court has to identify the clear proof of fraud or mutual mistake has to ascertain 4. The rectification will be done without prejudice, without 3rd person who is in good faith. Grounds for rectification basically are:
1. Mutual mistake, or
Case: Tay Tho Bok v. Segar Oil Palm estate Sdn Bhd.: The court held that it is of course that the burden of proving there was a fraud or mutual mistake lies upon the party who claims the agreement should be rectified. The said section 30 only to mutual mistake and in the instant case, the judge cannot see any evidence to show even suggest there was mutual mistake even if it was pleaded. What is mutual consent?
Mutual consent is not unilateral consent.
In the case...