Facts that a party seeking rectification must prove before the court can rectify the contract

Rectification is the process whereby a document, the meaning of which has already been ascertained is rectified so that it gives effect to the intention of the parties.
It is a remedy concerned with defects not in the making but in the recording of a contract. It is equitable in character and therefore discretionary.
Before the court can order rectification the party seeking the same must prove certain facts, namely:

  • Convincing proof or evidence showing that the document fails to record the intention of the parties. (Joscelyne V. Nissen (1970). A High degree of proof is needed so that certainty is not undermined.
  • The document does not embody the intention of both parties.
  • The document was proceeded by a concluded contract or a continuing common intention.
  • The applicant has sought rectification of the document at the earliest possible opportunity or instance and the defendant is not a bona fide purchaser for value without notice. This is because delay defeats equity.
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