The Burden Of Proof To Rectify A Contract: The Ordinary Civil Standard Applies

The issue

Rectification is an important equitable doctrine allowing courts to rewrite contracts that erroneously record the agreement reached by the parties.  The basic requirements for rectification are well settled.  Where there is a mutual mistake, the party seeking rectification must show (i) that the parties had a common continuing intention prior to the making of the document alleged to be deficient; (ii) that that intention remained unchanged or existed at the time when the document sought to be rectified was signed; and (iii) by mistake, the parties signed a document that did not accurately reflect their common intention.

However, the issue of the onus of proof applicable to this test has been the matter of recent uncertainty.  Historically, reflecting a concern not to open the floodgates to rectification claims, the courts have required something more than the usual civil burden of proof – a standard not as high as the criminal onus, but most recently