Rectification quiz by Stephanie Tozer, Falcon Chambers


Will a rectification claim be successful in each of these scenarios?

Part I

In each scenario, assume that A and B are the parties to an agreement which A now asserts should be rectified.

  1. Neither A nor B gives evidence, and no relevant documents are produced. A’s counsel invites the Court to infer that the parties must have intended to include the term for which A contends.Yes / No
  2. A and B both give evidence that, although they didn’t consider the matter at the time, they would, if asked, have agreed that the agreement should contain the term which A asserts should be included.Yes / No
  3. On the true construction of a transfer, B transferred to A just the envelope of the existing building. A and B both give evidence that they intended that the airspace should pass too (and it is clear from internal documents that this was so), although both agreed that they did not discuss this at the time, and neither party saw the other party’s documents at the time.Yes / No
  4. A intends to dispose of part of its business to B. A makes it clear that it is only prepared to include certain assets. B knows that is A’s position, but does not expressly agree that other assets will be excluded. The transfer includes additional assets.Yes / No
  5. A and B agree to vary a lease so as to vary the permitted uses, and make provision for a rent review after 2 years. They do not discuss the service charge clause at all, but the deed of variation (which was produced by adapting a precedent used in another case) provides that the tenant should pay an increased percentage of the service charge.Yes / No

Part II

  1. A and B agree that B will transfer to A 2 separate fields, registered under separate titles. By mistake the transfer transfers only one title. A sells this field to C, without making any mention of the other field. Does C acquire the right of rectification of the transfer?Yes / No
  2. A and B agree that B will transfer a field to A. The bulk of the field is registered, but a strip is unregistered. A TR1 is used but nothing is said about the strip. A sells to C, without making any mention of the strip. Does C acquire the right of rectification of the transfer?Yes / No
  3. A and B agree that A will buy flat and will have rights over common parts. The lease does not record the right of way (and no necessity arises as there is another entrance). B sells the reversion to C. Can A assert its right to rectify against C?Yes / No
  4. Would the position be different if A had asserted his claim against B before the transfer, and B had informed C of it?Yes / No