Publication | Closed Access
RESCISSION OF GUARANTEES FOR MISREPRESENTATION AND ACTIONABLE NON-DISCLOSURE
39
Citations
0
References
2002
Year
Information LeakageLawConfidentialityPredatory PracticeCommunicationTechnology LawLegal ComplianceLegal TheoryManagementLegal ProcessDisclosurePrincipal DebtorInnocent PartyPublic PolicyAccountingData PrivacyTrustInformation AsymmetryInformation ManagementRestitutionary ConceptsLegal ConsiderationArtsBankruptcy
It has been a traditional requirement of rescission ( ab initio ), even as a response to fraudulent misrepresentation, that it must be possible to restore both parties to the relevant contract to some equivalence of their pre-contract positions. A line of cases involving rescission of guarantees has, however, permitted a surety to be entirely released from the guarantee even though the creditor has relied on it by supplying credit to the principal debtor. The suggested rationalisation is that the traditional requirement is confined to cases where rescission in specie is being sought and the innocent party can be adequately protected by a claim for damages. The article also addresses the relevance to rescission of the restitutionary concepts of change or position and counter-restitution.