Dear Colleagues:

Those of you interested in Offer and Acceptance and questions of
rectification will be interested in a recent paper by ODGer David
McLauchlan, "Refining Rectification" (2014) 130 LQR. In it he argues
that the topic of rectification (common or unilateral) would be very
much simplified if courts were to return to first principles of offer
and acceptance. As he states: "rectification ought to be available where
a written contract fails to record either (1) the actual common
intention of the parties ... or (b) their objective consensus, in the
sense that the claimant was led reasonably to believe that its
understanding of the terms had been assented to by the defendant".

Although I do not agree with all his first principles in relation to
contract formation (I still think something has to cross the line, or
cross offers would be offer and acceptance, for example), I do generally
agree with the results he proposes in the paper, especially in respect
to the claim that there is nothing particularly special about unilateral
rectification that calls for some resort to vague equitable notions like
unconscionability.

Happy Reading,

--
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435