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Commercial Leasing Law & StrategyFeaturesContractsLandlord Tenant Law

The Scrivener's Error Doctrine In Commercial Lease Drafting

By Efrem Z. Fischer
December 01, 2022

One of my earliest memories as a first-year law student was my professors' contentions that every case we analyzed, from Contracts to Trusts and Estates, originated from a poorly written contract or last will and testament. Put another way, well written leases, contracts, or wills never made for good teaching cases.

Years later, as a practitioner, I have come to learn that even with properly drafted written lease agreements, when one party is seeking to extricate itself therefrom, claims of "mistake" will inevitably surface. But what are the limits of these efforts to rescind or reform an agreement based upon a mistake? Specifically, can a mere "Scrivener's Error" during drafting result in a wholesale extinguishing of a lease document?

The Causes of Action to Reform or Rescind an Agreement

It is well settled that "[a] claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake." Greater N. Y. Mut. Ins. Co. v. United States Underwriters Ins. Co., 36 A.D.3d 441, 443 (1st Dept. 2007). Further, to plead a claim for reformation, the factual allegations must establish that both contracting parties shared the same erroneous belief as to a material fact, and that their acts do not, in fact, accomplish their mutual intent. Simkin v. Blank, 19 N.Y.3d 46, 54-55 (2013).

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