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Contents
- Preliminary Material
- Main Text
- Part I Introduction
- 1 Core Distinctions
- Preliminary Material
- A Introduction
- B Termination Ab Initio and De Futuro
- C Void and Voidable Contracts
- D Rescission and Transactions Ineffective in Equity
- 2 Rescission and Independent Claims
- 3 Historical Foundations
- Preliminary Material
- A Introduction
- B The Common Law
- C Equity
- D The Special Case of Insurance
- 1 Core Distinctions
- Part II Grounds
- 4 Misrepresentation
- Preliminary Material
- A Introduction
- B Types of Misrepresentation: Fraudulent, Negligent, Innocent
- C Representation
- (1) Representations of existing fact and of law
- (2) Representation may be a contractual term
- (3) Representation may be express or implied
- (4) Passing on information generally not a representation
- (5) Silence generally not a representation
- (6) Sources of implied representations
- (7) Determining what was represented (expressly and impliedly)
- (8) What are not representations
- (9) Materiality of the representation
- D Representation must be Made by the Representor to the Representee
- E Representation must be False
- F Representation must be Relied On
- (1) Reliance and inducement: a question of causation
- (2) Ambiguous statements or conduct
- (3) Causation: fraudulent misrepresentation
- (4) Causation: non-fraudulent misrepresentation
- (5) Presumption of reliance and onus of proof
- (6) Examples of non-reliance on a false representation
- (7) Opportunity to discover truth does not disprove reliance
- (8) Subsequent transactions
- 5 Non-Disclosure
- Preliminary Material
- A Introduction
- B No General Duty of Disclosure
- C Course of Dealings where Disclosure is Required
- D Relationships where Disclosure is Required
- E Transactions where Disclosure is Required
- (1) Insurance
- (2) Guarantees and suretyship
- (3) Prospective partnerships
- (4) Compromises
- (5) Sales of land
- 6 Duress and Undue Influence
- Preliminary Material
- A Introduction
- B Duress
- (1) Introduction
- (2) First requirement: illegitimate pressure
- (3) Second requirement: coercion in the sense of no practical choice or alternative
- (4) Third requirement: causation
- C Undue Influence
- (1) Introduction
- (2) Two ways of proving undue influence
- (3) Actual undue influence: undue influence proved directly
- (4) Presumed undue influence: undue influence proved with the assistance of a presumption
- (5) Severable transactions
- 7 Mistake, Impaired Capacity, and Unconscionable Bargains
- Preliminary Material
- A Introduction
- B Mistake
- C Impaired Capacity: Mental Infirmity and Intoxication
- D Unconscionable Bargains: Exploitation
- 7.69
- 7.70
- 7.71
- 7.72
- 7.73
- 7.74
- (1) First requirement: serious disadvantage relative to the counterparty
- (2) Second requirement: weakness exploited in morally culpable manner
- (3) Third requirement: transaction overreaching and oppressive
- (4) Possible defence: counterparty shows that transaction was fair, just, and reasonable
- (5) Role of independent advice
- (6) Other Commonwealth jurisdictions
- 8 Conflict of Interest
- Preliminary Material
- A Introduction
- B Transactions with Fiduciaries
- C Double Employment
- D Bribery
- E Causation Irrelevant
- 9 Third Party Wrongdoing
- 4 Misrepresentation
- Part III Rescission By Election and By Court Order
- 10 Common Law, Equity, and Fusion
- Preliminary Material
- A Introduction
- B Persistence of the Distinction between Rescission at Law and in Equity
- C Overview of the Distinctions between Rescission at Law and in Equity
- 11 Electing to Rescind
- Preliminary Material
- A Introduction
- B How an Election to Rescind is Made
- (1) Communicating an unequivocal intention to disaffirm
- (2) Conduct must be unequivocal
- (3) Disaffirming by pleading
- (4) The need for communication
- (5) Rescission as a defence
- (6) Need for a tender or return of benefits at the time of electing
- (7) Special requirements when defending a call on shares
- C Transactions Voidable at Law
- D Transactions Voidable only in Equity
- 12 Extinction of the Contract
- 10 Common Law, Equity, and Fusion
- Part IV Restitutio in Integrum
- 13 General Principles of Restitutio in Integrum
- 14 Mutual Restitution: Rescission at Law
- Preliminary Material
- A Introduction
- B Restitution of Benefits Transferred
- (1) Nature of the right to restitution
- (2) Restitution of property transferred
- (3) Substitutive restitution of property transferred
- (4) Restitution for money paid
- (5) Restitution for services provided
- C Counter-restitution of Benefits Received
- (1) Nature of the obligation to make counter-restitution
- (2) The need for a return or tender of benefits received
- (3) Security for counter-restitution
- (4) Counter-restitution of property received
- (5) Counter-restitution for money received
- (6) Counter-restitution for services received
- 15 Mutual Restitution: Rescission in Equity
- Preliminary Material
- A Introduction
- B Restitution of Benefits Transferred
- C Counter-restitution of Benefits Received
- 15.44
- (1) Nature of the obligation to make counter-restitution
- (2) Counter-restitution of property received
- (3) Counter-restitution for money received
- (4) Counter-restitution for services received
- D Equitable Rescission by Election
- 16 Proprietary Claims
- Preliminary Material
- A Introduction
- B Proprietary Claims upon Rescission at Law
- C Proprietary Claims upon Equitable Rescission
- 17 Financial Adjustments
- 18 Restitutio in Integrum Impossible
- Preliminary Material
- A Basic Principles
- B The Bar at Law and in Equity
- C Where Counter-restitution Not Required
- D Counter-restitution and Unavailable Assets
- E Counter-restitution: Miscellaneous Issues
- F Prejudicial Change of Circumstances
- G Miscellaneous Issues
- 19 Partial Rescission
- Part V Third Parties
- 20 Intervention of Third Party Rights
- 21 Remote Recipients
- Preliminary Material
- A Introduction
- B Remote Recipients Vulnerable to Rescission
- C Nature of the Claim
- (1) Basis of the claim against volunteers and those taking with notice
- (2) Basis of the claim against assignees of a chose in action
- (3) No new claim to rescind upon disposition to remote recipient
- (4) Need to rescind original transaction
- (5) Remote recipient in no better position than original transferee
- D Consequences of Recovery
- 21.40
- (1) Avoidance of original contract
- (2) No avoidance of contract with the remote recipient
- (3) Restitution from the original transferee
- (4) Counter-restitution to the original transferee
- (5) Restitution from the remote recipient
- (6) No counter-restitution to the remote recipient
- (7) Remote recipient’s rights against his transferor
- E Protection of Bona Fide Purchasers
- 22 Succeeding to Rights to Rescind
- Part VI Other Bars
- 23 Affirmation
- Preliminary Material
- A Introduction
- B Nature and Justification
- C Affirming Party must be Free from the Vitiating Factor
- D Need for Awareness of Right to Rescind
- (1) Uncertainty as to whether electing party must know rights
- (2) Awareness of rights required in England
- (3) Awareness of rights not required in other parts of the Commonwealth
- (4) Whether knowledge of right to rescind should be required
- (5) What must be known
- (6) Deliberately failing to inquire into rights
- (7) Proving knowledge of rights
- E Communication
- F Unequivocal Words or Conduct
- (1) General principle
- (2) Application of the general principle
- 23.64
- Relevance of the ground for rescission
- Invoking or asserting contractual rights
- Remaining in possession
- Retaining money repayable upon rescission
- Receiving contractual payments
- Making contractual payments
- Conduct of litigation
- No affirmation from pleading rescission in the alternative
- Requesting, consenting to, or undertaking work on property acquired
- Instructions as to insured property and rights to inspect
- Reselling and intending or attempting to resell property acquired
- Attempting to rescind in part may be affirmation
- Affirmation from inaction
- (3) Effect of reservation of rights
- (4) Possibility of affirming after an election to rescind
- G Intention to Affirm is not Required
- H Affirmation is Generally Irrevocable
- I Onus of Proof and Pleading
- 24 Delay and Estoppel
- Preliminary Material
- A Introduction
- B The Different Doctrines Engaged by Delay
- C When Delay Bars Rescission
- (1) Freedom from the vitiating factor
- (2) Need for awareness of rights
- (3) Unreasonable delay after emancipation from the vitiating factor
- (4) What amounts to unreasonable delay
- Varies with the circumstances
- Unreasonable delay and the type of transaction
- Unreasonable delay and the type of property
- Unreasonable delay and prejudice
- Unreasonable delay and culpability of the conduct permitting rescission
- Delay and duress
- Other principles concerning delay
- Unreasonable delay and acting by analogy with the statute
- (5) The significance of prejudice
- D Estoppel
- 25 Bankruptcy and Winding Up
- Preliminary Material
- A Introduction
- B Bankruptcy and Winding Up Generally
- (1) No general bar to rescission
- (2) Supervening bankruptcy: rescinding to assert a proprietary claim
- (3) Supervening bankruptcy: rescinding to assert a personal claim
- (4) Rescission as a defence against the trustee in bankruptcy
- (5) Contracting with an undischarged bankrupt
- (6) Whether right to rescind survives discharge from bankruptcy
- (7) Winding up
- C Winding Up as a Bar to Shareholder’s Rescission
- (1) Introduction
- (2) The bar
- (3) Rationale
- (4) Scope
- (5) When winding up commences
- (6) Operation of the bar before winding up
- (7) Steps to be taken to prevent the bar operating
- (8) Statutory exceptions
- 26 Contracting Out
- 27 Bars for Non-Fraudulent Misrepresentation
- 28 Disproportionate Effect: Section 2(2) of the Misrepresentation Act 1967
- 23 Affirmation
- Part VII Gifts and Deeds
- 29 Gifts and Deeds
- Preliminary Material
- A Introduction
- B Gifts
- (1) How gifts are made
- (2) Void gifts
- (3) Discretion to reject and to reclaim a gift
- (4) Special vulnerability of gifts to rescission
- (5) Significance of how the gift is made and what is given
- (6) Gifts made by conduct
- (7) Gifts made by deed
- (8) Dispositions of another’s assets: powers of appointment
- (9) Gifts and theft
- (10) Assimilation of gifts to disadvantageous contracts
- C Deeds
- 29 Gifts and Deeds
- Part I Introduction
- Further Material
