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Copyright (c) 2012 The University of Texas School of Law
The Review of Litigation

ARTICLE: Rescission in Texas: A Suspect Remedy

Summer, 2012

The Review of Litigation

31 Rev. Litig. 493


George P. Roach*


I. Introduction
"Certainty resided in the common law courts, justice in the chancellor's equity." 1

Damages strategy sometimes goes unresolved until it is too late to implement the optimal approach, to obtain the necessary discovery, or to retain the right expert. To minimize this possibility, it is worthwhile early in a case to consider some key damage issues, such as how the judgment could change under different remedies or under alternative measures of the same remedy. Frequently overlooked is consideration of the differences between remedies at law and remedies in equity, including the following:

. Do the case facts lend themselves to one of equity's unique proprietary remedies (specific restitution, rescission, constructive trust, or unjust enrichment)?

. Do changes in key data that occurred after the date of the breach or tort favor a remedy that employs ex post evidence for measuring damages?

. Is it still possible to prevent or minimize a substantial portion of future damages? 2

. Is it likely that procedural issues or unresolved case facts could preclude or impair monetary remedies at law?

The answers to these questions are important in determining whether the remedy of rescission should be considered. As a proprietary remedy in equity, rescission can offer a unique result, even a windfall, although not necessarily under ordinary circumstances.

Rescission cancels a voidable contract and restores both parties to their positions before the transaction - that is, their status quo ante. 3 Contracts can be voided, deeds can be canceled ...
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