Introduction

Fomented by one or two prominent decisions, there has been considerable academic debate in the Commonwealth about the potential within the common law (embracing equity therein) for recognition of a concept of partial rescission.

More than one writer has pointed out that what is being argued about is not the complex issues that surround the extent to which, and the methods by which, the law places parties back in their pre-transaction positions where a ground for rescinding a contract (or other transaction) arises – called the process of restitutio in integrum. What is involved there is full rescission, or cutting away, of the contract from the plaintiff's point of view, which often involves consideration of the extent to which justice requires that the defendant be also placed back in his or her pre-contract position. Partial rescission, in contrast, envisages cutting away only some terms of the contract, leaving others on foot. In some cases, too, partial rescission might contemplate fresh terms being added in substitution for those parts that have been cut away. Notwithstanding the differences between the two concepts, we will see that in rare cases partial rescission may yet be an appropriate aspect of the process of restitutio.