Under a written contract, a roofing contractor agreed to install a new roof over an existing roof on a commercial building and gave a ten year guarantee against leaking with a promise to repair the roof during that period. The contractor provided the necessary repairs for the first five years of the guarantee, but thereafter refused to perform any additional repair work. The contractor conceded that it had breached the ten year guarantee contract, but appealed the measure of damages. According to the Appellate Division, because the owner did not sue for recission, the lower court was wrong in returning the contract price.
Recission is an equitable remedy, only available in limited circumstances.
Although recission is discretionary, it may not be employed unless a court can return the parties to their original positions. Here, returning the parties to their original positions was impossible. On these bases, the Appellate Division found the proper measure of damages to be the cost of repairs. All rights reserved.