Lloyd's Maritime and Commercial Law Quarterly


THE LAW OF RESCISSION. Dominic O’Sullivan, Steven Elliott, and Rafal Zakrzewski. Oxford University Press (Oxford) (2007) lxxiii and 677 pp, plus 23 page Index. Hardback £125.
English law can be uncertain in areas where the law’s foundations were laid in the mystical past before the procedural statutes of the 19th century, culminating in the Judicature Acts. The mystery deepens where it is difficult to divine the nature of the doctrine or remedy from the reported judgments of the 18th and early 19th centuries against the background of legal science as it then stood. The remedy of rescission is one such area, which has seemingly forever played at the borderlands of common law and equity. The authors of The Law of Rescission bring much learning to this topic and in so doing introduce needed clarity to this remedy of rescission, a word which plays on the lips of every lawyer, but whose principles can be elusive.
The book is divided into seven parts (assisted by a table of cases of 44 pages in length), beginning with a general description of the nature of the remedy, and its relationship with other remedies available at general law. The explanation of the historical foundations of rescission brings with it a degree of scholarship which makes this discussion a particular pleasure to read. The second part of the book is perhaps its weakest part, but that is inevitable, as it provides in summary form, but still with some useful detail, the grounds on which rescission lies as a remedy. The grounds considered include misrepresentation, non-disclosure, duress, undue influence and mistake. The treatments veer between the more successful (such as misrepresentation) and the more perfunctory (such as non-disclosure). This summary is focused on the grounds of relief themselves, rather than their relationship with the remedy of rescission. Indeed, in many instances, the authors identify those instances where the relevant ground, such as mistake, results not in the grant of rescission, but in the relevant contract becoming void, non-existent or unenforceable.
The strength of this admirable book lies in the third, fourth, fifth and sixth parts, which represent the bulk of the book’s content. In these sections, the authors deal in depth with the manner in which the remedy may be exercised or obtained, the self-help nature of the remedy at common law and the equitable need to obtain an order of the court, the doctrine of restitutio in integrum , and the bars to rescission, by reason of inter alia the intervention of third party interests, affirmation, delay, and estoppel. The final part of the book is concerned with the reach of the remedy into the realm of gifts and deeds, an invaluable discussion, not least because (at least to the eyes of a common lawyer) rescission is regarded chiefly as a remedy to undo contracts, and little thought is too often given to other instruments which might be rescinded.
Before reviewing this book, I made a list of issues and points which I thought any decent book on the topic ought to explain, including, for example, the decision in Car and Universal Finance Co Ltd v. Caldwell [1965] 1 QB 525, concerning the requirement of communicating an election to rescind, which is analysed at paragraphs 11.27–11.37. On the list also was the decision of the High Court of Australia in Vadasz v. Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 and the notion of partial rescission—described by Colman J in De Molestina v. Ponton [2002] 1 Lloyd’s Rep 271, 287, as “equitable engineering ”—a topic which is exhaustively reviewed in Chapter 19. I was not disappointed in my wish-list.



The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.