Mistakes happen.  Mistakes even happen in the formation of a contract.

The two types of mistakes are mutual mistake and unilateral mistake.  Both can give rise to the reformation or rescission of a contract, although through a clear and convincing standard of evidentiary proof.

With a mutual mistake, reformation of the contract is typically the recourse.

With a unilateral mistake, rescission is typically the recourse; reformation of the contract may be appropriate if there was fraudulent or inequitable conduct by the other party to the contract.

For more information on the legal doctrines known as mutual mistake or unilateral mistake, please check out this article.

If you are in a position where you believe these doctrines may apply, it is imperative that you consult and work with counsel to flesh out the facts to support the clear and convincing standard of evidentiary proof.

It is important to remember, however, that just because you have a bad contract or the other side got the better end of the bargain does NOT mean there was a mistake in the contract formation process.  Courts are not here to rewrite bad contracts that a party recognized was a bad contract after-the-fact. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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