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Is a written contract cast in stone?

If you are wise, you will ensure that any important contract you enter into is put into writing and checked by your attorney. In some instances – for example a sale of immovable property – the law requires that the contract be in writing and does not recognise an oral agreement as valid, so there is no choice but to have a written agreement.

If a contract is in writing, is it cast in stone, or can it be changed?

Clearly, if all the parties to the agreement are willing to do so, the agreement can be changed in any way they wish. But what is the situation where one of the parties wants to change the agreement and the others do not?

Fundamentally, once parties enter into a contract (that is to say, a legally binding agreement) they are locked into it, unless all the parties agree to change it.

Rectification as distrinct from amendment

There is, however, one important circumstance in which a written agreement can be changed against the wishes of some of the parties. This is where one party successfully establishes that the written agreement does not in fact accurately reflect what was agreed.

Strictly speaking, the written agreement is then not being changed – it is merely being rewritten to express the true agreement of the parties. The law refers to this as the rectification (as distinct from the amendment) of the agreement.

In the recent case of Propfocus 49 (Pty) Ltd and Wenhandel 4 (Pty) Ltd [2007] SCA 15, our Supreme Court of Appeal ruled that a party who applies to court for an order rectifying an agreement must prove –

In other words, the party claiming rectification will not succeed simply by showing that the written agreement does not reflect his own intention; he must show that it does not express the common intention of all the parties.

It is only where the party can prove this on a balance of probabilities that the court will make an order for the rectification of the agreement.

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