FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. · ¶72

What is more, the majority’s insistence that the provision is a rule of decision for courts, not rights-creating language for parties, ante, at 5–6, simply does not track with the ordinary meaning of the phrase “at the instance of.” See 7 Oxford English Dictionary 1040 (2d ed. 1989) (defining “at the instance of ” as “at the solicitation, suit, instigation, or suggestion of ”); Webster’s New International Dictionary 1287 (2d ed. 1954) (defining “instance” as “[t]he institution and prosecution of a suit”). Also, rescission is an affirmative right. “[A] party believing himself entitled to have the contract abrogated and to have himself restored to his former position may invoke the aid of a court of equity and obtain a decree for the rescission of the contract and, in proper cases, for the cancellation of the instrument evidencing it.” H. Black, Rescission of Contracts and Cancellation of…

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