Casebrief Sargent v ASL Developments

Answer 1

Facts: Mrs. Sargent's contract to sell her land stated that either party was entitled to rescind if the land was affected by a town planning scheme otherwise than as disclosed in the Schedule to the contract. The Schedule referred to an annexed certificate, but not certificate was annexed. In fact, as Mrs Sargent always knew, the land was so affected. Some 2 ½ years later, she was advised that she was entitled to rescind the contract, and she did so. In the interval she had received payments of interest and rates, and had assisted the purchaser to bring the land under the Real Property Act. Issues: Was her rescission effective? Or did she waive her right to termination in receiving payments of interests and rates? Held: Her rescission was ineffective, since her previous actions constituted an irrevocable election to affirm the contract. They were unequivocal, adverse to the purchaser, justifiable only on the basis that the contract was continuing on foot, and were taken only when she had knowledge of the facts giving rise to a right of rescission. It was immaterial that she was ignorant of the right itself. Ratio: If an aggrieved party 'waives' a breach he or she indicates an intention to continue with performance and deprives he or she of the right to terminate. The doctrine of performance operates in such circumstances.