From Subjective Mistake to Objective Agreement: Rectification of Contractual Documents for Common Mistake
11 December 2026 (Friday), 12:30 – 1:30 PM
Rm723, Cheng Yu Tung Tower, The University of Hong Kong
In Chartbrook (UKHL), Lord Hoffmann prescribed that the same unitary, objective, approach (better described as addressee-centric objectivity) which governs contractual interpretation should also underpin the rectification of contractual documents for common mistake; and this was adopted in Daventry (EWCA) and Kowloon (HKCFA). Twenty years after Chartbrook, spurred on by critics who insisted on a subjective approach, Leggatt LJ, delivering the judgment of the English Court of Appeal in FSHC, disapproved of Chartbrook. In turn, this novel, bifurcated, subjective FSHC approach towards common mistake rectification was endorsed by the Privy Council and the UK Supreme Court in Porter and Nexus respectively. However, in fact, the law relating to the rectification of contractual documents for so-called ‘common mistakes’ has evolved fundamentally – by shifting the courts’ focus – from searching for a ‘mistake’, to identifying an ‘agreement’. In any event, the FSHC approach seems impracticable; and reverting to the objective Chartbrook / Kowloon approach appears preferable for engendering coherence and simplicity.
About Speaker:
Kelry Loi is Associate Professor at the Faculty of Law, National University of Singapore (NUS). He was previously Assistant Professor at the University of Hong Kong; and Lecturer at Merton College, Oxford. He obtained his DPhil from the University of Oxford (thesis entitled ‘Contracts in Writing: Issues in Rectification for Mistake and Rescission for Misrepresentation’); LLM from the University of London (as a graduate student at University College London (UCL)); and LLB from NUS. Kelry has written on contract, trust and commercial law. He is currently Co-Director of the Asian Law Institute (ASLI).
Moderator:
David Winterton, Associate Professor, The University of Hong Kong Faculty of Law