By William E. McNally and Barbara E. Cotton

There seems to be a commonly held opinion among legal practitioners that restitutio in integrum is a sine qua non of the remedy of rescission. Upon this view, if the original parties to a contract cannot be restored to their original positions through return of the subject matter of the contract, the remedy of rescission will not be available.

This is actually not the case. The law has evolved such that rescission can be granted even though restitutio in integrum is not achievable, if it is "practically just" in the circumstances.

This principle has developed from the seminal case of Erlanger v. New Sombrero Phosphate Company (1878), 3 App. Cas. 1218, and thus there is in fact nothing new to be revealed in this brief article. The concept that restitutio in integrum is a fundamental requirement for rescission seems to be so ingrained, however, that this article will briefly review development of the "practically just" principle and its entrenchment in Canadian law.

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