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Editing Contracts/Rescission
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==In court== | ==In court== | ||
Rescission is an [[equitable remedy]] and is discretionary.<ref>{{cite AustLII|HCA|64|1955|litigants=Alati v Kruger |parallelcite=(1955) 94 [[Commonwealth Law Reports|CLR]] 216 at p 223 |courtname=auto}}.</ref> It is used as a synonym for termination at law. A court may decline to rescind a contract if one party has affirmed the contract by his action,<ref>{{cite BAILII |litigants=[[Long v Lloyd]] |year=1958 |court=EWCA |division=Civ |num=3 |courtname=auto |parallelcite=[1958] 1 [[Weekly Law Reports|WLR]] 753}}.</ref> or a third party has acquired some rights or there has been substantial performance in implementing the contract. To improve chances of being granted rescission, parties may do well to describe those circumstances are giving rise to an entitlement to terminate, as was done in ''Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd''.<ref>{{cite AustLII|HCA|61|2007|litigants=[[Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd]] |parallelcite=(2007) 233 [[Commonwealth Law Reports|CLR]] 115 |courtname=auto}}.</ref> Furthermore, because rescission is supposed to be imposed ''mutually'' upon both sides to a contract, the party seeking rescission normally must offer to give back all benefits he or she has received under the contract (an "offer of tender"). | Rescission is an [[equitable remedy]] and is discretionary.<ref>{{cite AustLII|HCA|64|1955|litigants=Alati v Kruger |parallelcite=(1955) 94 [[Commonwealth Law Reports|CLR]] 216 at p 223 |courtname=auto}}.</ref> It is used as a synonym for termination at law. A court may decline to rescind a contract if one party has affirmed the contract by his action, <ref>{{cite BAILII |litigants=[[Long v Lloyd]] |year=1958 |court=EWCA |division=Civ |num=3 |courtname=auto |parallelcite=[1958] 1 [[Weekly Law Reports|WLR]] 753}}.</ref> or a third party has acquired some rights or there has been substantial performance in implementing the contract. To improve chances of being granted rescission, parties may do well to describe those circumstances are giving rise to an entitlement to terminate, as was done in ''Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd''.<ref>{{cite AustLII|HCA|61|2007|litigants=[[Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd]] |parallelcite=(2007) 233 [[Commonwealth Law Reports|CLR]] 115 |courtname=auto}}.</ref> Furthermore, because rescission is supposed to be imposed ''mutually'' upon both sides to a contract, the party seeking rescission normally must offer to give back all benefits he or she has received under the contract (an "offer of tender"). | ||
The US state of Virginia uses the term "cancellation" for equitable rescission. Furthermore, a minority of common law jurisdictions, like South Africa, use the term "rescission" for what other jurisdictions call "reversing", "overturning" or "overruling" a court judgment. In this sense, the term means to be set aside or make [[void (law)|void]], on application to the court that granted the judgment or to a higher court. Applications to rescind a judgment are usually made on the basis of error or for good cause. | The US state of Virginia uses the term "cancellation" for equitable rescission. Furthermore, a minority of common law jurisdictions, like South Africa, use the term "rescission" for what other jurisdictions call "reversing", "overturning" or "overruling" a court judgment. In this sense, the term means to be set aside or make [[void (law)|void]], on application to the court that granted the judgment or to a higher court. Applications to rescind a judgment are usually made on the basis of error or for good cause. |