Equity allows substantial restitution - the court does not rescind, but merely affirms the rescission of the innocent party. There are 3 positions regarding rescission everything is still executory - then the act, plus the intention to rescind puts the contract at an end. Here, no rescission unless and until status quo ante can be restored - by virtue of Equity, substantial restitution is enough. If there is a dispute as to when rescission is effective, the court can affirm the rescission without consequential orders if the status quo at the time of the suit has been restored. But if the court's order is necessary to effect restitution, the rescission will not be effective unless the court can order what the parties could not do themselves - if the court has the ability to make an order, the duty is discharged.
Rescission is the act of the party.
I do not think there is any real difference between the position of the High Court and that of Atkinson in Abram Steamship . Possession of business had effectively been handed over by vacating the premises. Substantial restitution possible by court ordering an account of any benefit P may have received from business whilst in possession. This site is maintained by the Electronic Publishing Group at UniServe Law . Use our comments form or an address in contact details .