More than you wanted to know about the doctrine of reformation.

• Author: Baynes, Thomas E., Jr.
• Position: Florida

If there is anything that takes the professional sweat off a dirt lawyer's brow, or places a smile on a malpractice carrier's face, it is the equitable safety net of reformation, definitely a doctrine for the legally maladroit. It has to be admitted that one of the main reasons we trial lawyers exist in the commercial law arena is to extricate our dirt lawyer partners from chaos caused by the complex transaction documents they create. We're not suggesting ambiguity here--we are talking about out-and-out mistakes.

So here is the formula for the rescue and, fortunately, the scope of the doctrine is easily ascertained:

Where an agreement has been actually entered into, but the contract, deed, or other instrument in its written form does not express what was really intended by the parties thereto, equity has jurisdiction to reform the written instrument so as to conform to the intentions, agreement and understanding of the parties. (1)

The classical fact scenario is a written document, which incorrectly states the deal between the parties, and, at least according to one of the parties, the error was mutual. The court's role is not rewriting the instrument or conjuring up a new agreement, (2) but from the evidence determining the intent of the parties as to the correct language. (3) Literally and legally, reformation does not get any simpler.

Considerations of justice and fair dealing have uniformly influenced courts of equity to relieve an individual from the consequences of a written instrument which are prejudicial to him, and which by a mistake, does not contain the true intention of the parties, and prevent the party in whose favor such mistake is made from deriving any advantage from that part of said instrument which was unintended by the parties. (4)

The black letter criteria for reformation is a written agreement, (5) a mutual mistake (6) (or fraud, or misrepresentation by a party and a mistake by the other party), (7) and proof by clear and convincing evidence. (8)

"Reformation only corrects the defective writing so as to accurately reflect true terms actually agreed to by parties." (9) Reformation does not seek to interpret what the language in the document states. (10) Yet, as with any other equitable remedy, reformation requires that there be no adequate remedy at law. (11)

Now, when it is time to draft a complaint, it should be remembered that older decisions often discuss the specific (somewhat antiquated) pleading requirements for setting forth a cause of action. (12) Pleading is now more liberal with the ability to amend even after a loss. (13) Further, it is now clear that reformation can be raised defensively, (14) and there are a few opinions that suggest it being allowed without the necessity of pleadings. (15)

Realistically, a complaint seeking reformation must allege a cause of action. To accomplish this, it should set forth the facts concerning the creation of the written agreement, its language, the language intended by the parties, the mutual mistake, and how the parties' performance under the reformed agreement will be affected. This latter criterion is critical because where there is no difference in the result, a court will not grant reformation. (16) Ultimately, the plaintiff has the burden of proving all these elements of reformation by clear and convincing evidence. (17)

Looking to the necessity of having a written instrument, there is an instant revelation regarding reformation: the operation of the doctrine is not barred by the statute of frauds. (18) Further, the use of parol evidence to establish the mutual mistake has long been approved in Florida law. (19) In reformation, it does not matter if language is incorrect or missing. (20) Reformation can be used to establish consideration even if not stated, but cannot be used to create additional obligations to the instrument. (21)

Through reformation you can even add the missing signature to the agreement. (22) In Tri County Produce Dist. Inc. v. N.E Production Credit Assn., 160 So. 2d 46, 49 (Fla. 1st DCA 1963), the court described reformation as follows:

The decisions from this and other jurisdictions are replete with instances in which written instruments have been reformed on the ground of mutual mistake so as to include land erroneously omitted; to delete land which had been erroneously included; to add signature of a witness and seals to instruments which were inadvertently omitted. Research reveals only one decision, however...