COUNTERING DECEPTIVE CONTRACTS
Historically, commoners were often duped into signing deceptive contracts: “You should have read the fine print!” may have then been a legal argument against a partially-illiterate person who was then held unjustly “to the letter of the law” in court.
Well, within law there are remedies for this very reason — to protect people. Unfortunately, however, people have been hurt and abused by this sneaky way of “doing business,” which brings us to a type of remedy called a
rescission of contract:
“The unmaking of a contract by a court that deems it to be unfair and unjust.” [1]
rescission:
n. (17c)
l. A party’s unilateral unmaking of a contract for a legally sufficient reasons such as the other party’s material breach, or a judgment rescinding the contract; VOIDANCE. * Rescission is generally available as a remedy or defense for a nondefaulting party and is accompanied by restitution of any partial performance, thus restoring the parties to their precontractual positions. – aka avoidance.
2. An agreement by contracting parties to discharge all remaining duties of performance and terminate the contract. — Often misspelled either recision or recission. – aka (in sense 2) agreement of rescission; mutual rescission; abandonment. rescissory, adj.” [1]
Excerpt from John D. Calamari & Joseph M. Perillo’s The Law of Contracts:
“The [UCC] takes cognizance of the fact that the term ‘rescission’ is often used by lawyers, courts and businessmen in many different senses; for example, termination of a contract by virtue of an option to terminate in the agreement, cancellation for breach and avoidance on the grounds of infancy or fraud. In the interests of clarity of thought -as the consequences of each of these forms of discharge may vary -the Commercial Code carefully distinguishes three circumstances. ‘Rescission’ is utilized as a term of art to refer to a mutual agreement to discharge contractual duties. ‘Termination’ refers to the discharge of duties by the exercise of a power granted by the agreement. ‘Cancellation’ refers to the putting an end to the contract by reason of a breach by the other party. Section 2-720, however, takes into account that the parties do not necessarily use these terms in this way.” [3]
equitable rescission – (1889) Rescission that is decreed by a court of equity.
express rescission – A straightforward, explicit agreement of the parties to a contract that it will no longer bind either of them. * The consideration for the promise of each party is the renunciation by the other of his rights under the contract.
legal rescission – (1849) 1. Rescission that is effected by the agreement of the parties. 2. Rescission that is decreed by a court of law, as opposed to a court of equity. [2]
References:
[1]: Black’s Law Dictionary Second Edition Online, “RESCISSION OF CONTRACT”: http://thelawdictionary.org/rescission-of-contract/
[2]: All other definitions from Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[3]: John D. Calamari & Joseph M. Perillo, The Law of Contracts 5 21-2, at 864-65 (3d ed. 1987). ,
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