Book Review - RECTIFICATION OF DOCUMENTS by John Tarrant

• Date: 01 December 2020
• Citation: (2020) 32 SAcLJ 1264
• Author: LAU Kwan Ho LLB (National University of Singapore), LLM (New York University); Advocate and Solicitor (Singapore); Assistant Professor of Law and DS Lee Foundation Fellow, School of Law, Singapore Management University.
• Published date: 01 December 2020

1 The law on the rectification of documents is undoubtedly a vital field of study. It is impossible to properly understand, or construe, a document that is intended to have legal effect without possessing a working knowledge of the rules on rectification, together with its companion rules on the interpretation and implication of documentary provisions. Unfortunately it is also accurate to say that the law of rectification is presently as troubled as it is important.

2 In his newest book, Rectification of Documents, John Tarrant offers a compelling account and analysis of how rectification got into a mess and how it ought to resolve itself. There have arisen many debatable issues in rectification over the years – some of which are mentioned below by this reviewer, and almost all of which are touched upon by Tarrant in his work – but one disagreement among modern judges and scholars rises above all others: whether an exercise in equitable rectification is dominantly objective or subjective. As Leggatt LJ (as he then was) noted in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd2 (“FSHC”), the controversial nature of this and other related issues is reflected in the unprecedented number of lectures in which judges or retired judges have commented on them. Tarrant's latest contribution is no less timely or thoughtful.

3 Commencing with a chapter on the use of common law construction (or, as it is sometimes known, common law rectification) as a means of correcting errors in a document, Tarrant notes that minor errors and even more significant errors – such as clauses lacking commercial sense and improbable results like absurdities and inconsistencies – are correctible by a court in the course of interpreting the terms, without having recourse to rectification. There are useful commentaries on

cases from across the Commonwealth, a theme repeated to great effect throughout the book, which help to elucidate the relationship between the interpretation and rectification of documents (although Singapore-based readers may note also the possible impact of the Evidence Act).3 One of Tarrant's conclusions in this chapter is that even as the expansion of common law construction necessarily results in a narrower scope for equitable rectification, the latter should retain a meaningful role primarily to correct mistakes in the recording of agreements, such as where a document makes perfect commercial sense but does not accurately record what was previously agreed...