Tender errors and unilateral rectification

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Legal and contractual solutions · Tenders

What relief is available where a tender is accepted with knowledge of an error?

Unilateral mistake, knowing exploitation and rectification

Acceptance ordinarily fixes the tendered bargain even where the price contains an error. Rectification may be available in the exceptional case where the recipient knew of the tenderer's mistake and took advantage of it.

Quick answer

A tendering error does not ordinarily permit repricing, but knowing exploitation of the mistake may justify rectification

The tenderer must prove more than an obvious undervalue or an avoidable estimating failure. It must establish its actual intention, the recipient's actual knowledge of the mistake and conduct amounting to taking advantage of it. Where those matters are proved, the court may reform the relevant document so that it records the transaction recognised in equity.

IssuePosition
Accepted tender containing an errorThe tenderer ordinarily bears the error.
Recipient suspects an errorSuspicion alone does not establish rectification.
Recipient knows and takes advantageUnilateral rectification may be available.
Required proofActual intention, actual knowledge and exploitation must be established.
Best protectionDetect and notify the error before acceptance.

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