Joscelyne v Nissen
Court of Appeal
Citations:  2 QB 86;  2 WLR 509;  1 All ER 1213; (1969) 114 SJ 55;  CLY 379.
The claimant owned a car hire business. He shared a house with his wife and daughter. The claimant’s wife became ill, leaving the claimant unable to continue with the business. He discussed transferring the business to his daughter on condition that she pay the household expenses. The two negotiated, but did not form an oral contract.
The parties later signed a written contract for the transfer of the business. This contract provided that the daughter would ‘discharge all expenses in connection with the whole premises…and shall indemnify [the claimant] from and against any claim arising in respect of the same.’
The daughter began paying the household expenses. However, the parties’ relationship later soured. The daughter stopped paying the bills, arguing that the contract, properly construed, did not require her to pay the household expenses. The claimant sued for a declaration that she was required to pay those expenses. In the alternative, the claimant sought rectification of the contract to include a clause requiring her to pay the expenses. The judge at first instance ordered rectification of the contract. The daughter appealed.
- Should the contract be rectified to require the daughter to pay the household expenses?
The Court of Appeal held in favour of the claimant. There was no dispute that the parties had negotiated on the basis that the daughter would pay the household expenses, and that the daughter had agreed to this. The parties still had this intention when they signed the written agreement. This was sufficient basis for the court to grant rectification. It did not matter that the parties had not concluded a binding oral contract before they signed the written agreement.
This Case is Authority For…
The courts have jurisdiction to rectify an agreement if the parties had a common continuing intention with regards to a particular provision when they entered into the written contract. There is no need for the courts to find that the parties had made a prior oral contract before making the written contract.
Nevertheless, the party seeking rectification must have convincing proof that the written instrument did not reflect the parties’ common intention, as manifested by some prior outward accord or communication.