Cases where the rescission of a contract may be adjudged
1. Introduction:
Rescission is an equitable remedy that is converse to that of specific performance. it is a right that a party to a transaction sometimes has to set the which a party to a transaction sometimes has to set a transaction aside and restore to his former position. when an innocent party who has become the victim of the transaction can challenge the contract to avoid it.
2. Relevant Provisions:
Sec. 35 to 38 specific relief act.
3. Meaning of rescission:
Rescission means to avoid the contract or withdrawal or revocation.
ACCORDING TO SNELL:
Rescission is a right in which a party to a transaction sometimes has to set the transaction aside and restore it to his former position.
4. Nature of rescission:
Rescission is not strictly a judicial remedy but the act of the party to rescind while adjudging rescission of the contract the court is concerned with the question of whether the person rescinding the contract was justified in doing so.
5. Application:
Rescission does not apply to contracts that are void but voidable.
6. Grounds for rescission:
- Voidability
- Mistaken of law
- Mistake of fact.
- Constructive fraud.
- Fraudulent misrepresentation.
7. Cases when rescission is adjudged:
Following are the cases when rescission is adjudged.
I. Where the contracts are voidable or terminable by the plaintiff:
Where the contract is voidable or terminable by the plaintiff, the rescission is adjudged.
Illustration:
A sells a field to B. There is a right of way over the field of which A has direct personal knowledge but which fact the conceals from B in this case B's right to contract rescinded.
II. Where the contract is unlawful for causes not apparent on its face and the plaintiff is more to blame than the plaintiff:
Where such unlawfulness arises, the party can rescind the contract.
Illustration:
A, an attorney induces his client B a Hindu widow to transfer property to him to defraud B, 's creditors. here the blame lies on A. B can get rescission of the contract.
III. Default in the payment:
Where a court passes a decree for specific performance of a contract of sale or a lease and performs his part i.e. makes default in the payment of purchase money or that of the lease the vendor or lessor may sue for rescission of the contract.
IV. Alternative prayer for rescission:
A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be canceled and the court, if it refuses to enforce the contract specifically, may direct to be rescinded and delivered up accordingly.
8. The court may require party rescinding to do equity:
On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
9. Effect of rescission:
Its effect of rescission is the restoration of the plaintiff to his original position as if the contract had not been made.
10. Scope:
Specific relief act is an adjective law and substantive law is to be looked for elsewhere it presents a codification of principles derived from a long series of precedents and practices of the English court of equity. in sec 35 the procedure for rescission of a contract has been described for written contracts it applies to both the vendor and vendee. any one of such party may move the court by motion in the action for an order to put an end to the contract.
11. Conclusion:
To conclude I can say that when the contract is required by law to be couched in writing or has since been registered its rescission or modification must be possible by another written agreement. rescission may be adjudging where the contract is voidable and terminable by the plaintiff unlawful for the causes not apparent on its face and when there is alternative prayer of rescission.
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