Enforcing Rights & Remedies under a Contract for the Sale of Land

Enforcing rights and remedies under a land contract is to be understood in
the sense of vindicating the right, and bringing about, or achieving, the
remedy.
Rescission:
1.4 Probably the most common, and arguably, the most important, right or
remedy in the context of disputes relating to contracts for the sale of land
is that of rescission or termination. Depending upon the circumstances, the
remedy may be available to either vendor or purchaser. Often, the
determination of which party has this right is a “watershed” issue, which will
determine what other rights or remedies flow; which of the parties is
innocent; where the deposit should go and which party must pay
damages. Often the question will simply be: by whose default did the
contract “go off”?
1.5 Another incident of this remedy is that as is discussed below, loss of
bargain, or expectation 8 , damages are only recoverable if the contract is
at an end.
1.6 The failure to properly exercise the right, may result in it being lost, as well as
the resultant remedy, and may also affect what other remedies are available.
Accordingly the right must be validly exercised – clearly, unequivocally and
in proper form.
1.7 A claim to rescission is a right of action but is not itself a chose in action 9 (and
consequently cannot be assigned separately from the property affected by the
transaction that is sought to be rescinded) 10 .
The different meanings of the word “rescission”:
2.1 In the law, the word “rescission” is used in a number of different senses:
8 “Expectation” damages are payable for the loss involved in non-performance of the contract where
such performance was ‘expected’ by the innocent party. Non-performance is the loss of a contractual
promise which is a valuable right which must be compensated in damages representing the value of the
right: Marks v GIO Holdings Ltd (1998) (1998) 196 CLR 494; (1998) 158 ALR 333; 73 ALJR12; [1998] HCA
699 per Gaudron at [12], [13]
9 “A chose in action is property, something capable of being turned into money. Snell's Equity, 29th ed.
(1990), p. 71 defines choses in action as "all personal rights of property which can only be claimed or
enforced by action, and not by taking physical possession:" ”Investors Compensation Scheme Ltd v West
Bromwich Building Society (No.1) [1998] 1 W.L.R. 896 at 915; [1998] 1 All E.R. 98 per Lord Hoffmann
10 Ibid, Investors Compensation Scheme Ltd at 916 per Lord Hoffmann
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