RESCISSION OF A CONTRACT
The destruction or annulling of a
2. The right to rescind a contract seems to suppose not that the
contract has existed only in appearance; but that it has never had a real
existence on account of the defects which accompanied it; or which prevented
its actual execution. 7 Toul. n. 551 17 Id. n. 114.
3. A contract cannot, in general, be rescinded by one party unless both
parties can be placed in the same situation, and can stand upon the same terms
as existed when the contract was made. 5 East, 449; 15 Mass. 819; 5 Binn. 355;
3 Yeates, 6. The most obvious instance of this rule is, where one party by
taking possession, &c., has received a partial benefit from the contract.
Hunt v. Silk. 5 East, 449.
4. A contract cannot be rescinded in part. It would be unjust to destroy
a contract in toto, when one of the parties has derived a partial benefit, by a
performance of the agreement. In such case it seems to have been the practice
formerly to allow the vendor to recover the stipulated price, and the vendee to
recover, by a cross-action, damages for the breach of the contract. 7 East,
480, in the note. But according to the later and more convenient practice, the
vendee, in such case, is allowed in an action for the price, to give evidence
of the inferiority of the goods in reduction of damages, and the plaintiff who
has broken his contract is not entitled to recover more than the value of the
benefit the defendant has actually derived from the goods or labor; and when
the latter has derived no benefit, the plaintiff cannot recover at all. Stark.
on Evidence, part 4, tit. Goods sold and delivered; Chitty on Contr. 276.
5. A sale of land, by making a deed for the same, and receiving security
for the purchase money, may be rescinded before the deed has been recorded, by
the purchaser surrendering the property and, the deed to the buyer, and
receiving from him the securities he had given; in Pennsylvania, these acts
revest the title in the original owner. 4 Watts, 196, 199. But this appears
contrary to the current of decisions in other states and in England. 4 Wend.
474; 2 John. 86; 5 Conn. 262; 4 Conn. 350; 4 N. H. Rep. 191; 9 Pick. 105; 2 H.
Bl. 263, 264; Pre. in- Chan. 235; 6 East, 86; 4 B. & A. 672. See 7 East,
484; 1 Mass. R. 101 14 Mass. 282; Whart on s Dig. 119, 120 10 East, 564; 1
Campb. 78, 190; 3 Campb. 451; 3 Starkie, 32; 1 Stark. R. 108; 2 Taunt. 2; 2 New
Rep. 136; 6 Moore, 114; 3 Chit. Com. L. 153; 1 Saund. 320, b. note; l Mason,
437; 1 Chip. R. 159; 2 Stark. Ev. 97, 280 8 lb. 1614, 1645 3 New Hamp. R. 455;
2 South, R. 780 Day s note to Templer v. McLachlan, 2 N. R. 141; 1 Mason, 93;
20 Johns. 196; 5 Com. Dig. 631, 636; and Com. Dig. Action upon the case upon
Assumpsit, A 1, note x, .p. 829, for a very full note; Com. Dig. Biens, D 3, n.
6. As to the cases where a contract will be rescinded in equity on the
ground of mistake, see Newl. Cont. 432; or where heirs are dealing with, their
expectancies, lbid. 435; sailors with their prize money, Ibid. 443; children
dealing with their parents, Ibid. 445; guardians with their wards, Ibid. 448;
attorney with his client, Ibid. 453; cestui que trust, with trustee, Ibid. 459;
where contracts are rescinded on account of the turpitude of their
consideration, Ibid. 469; in fraud of marital rights, Ibid. 424 in fraud of
marriage agreement, Ibid. 417 on account of imposition, Ibid. 351; in fraud of
creditors, lb. 369; in fraud of purchasers, Ib. 391; in fraud of a deed of
composition by creditors, lb. 409.
Source: Bouviers Law Dictionary 1856 Edition