FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. · ¶73

Then there’s the capaciousness of the phrase “any party.” “Party” could refer to a party to a contract. See Brief for Respondents 2. Or it could refer to a party to a litigation. See Brief for Petitioners 2. Either way, “any” ensures that, under the statute, rescission can be raised affirmatively or defensively, whether by the shareholder, the investment company, the plaintiff, or the defendant. The majority’s conclusion that the phrase “any party” contemplates only those rescission claims raised defensively is not only divorced from the text but also illogical given the circumstances. Once a contract “has been performed”—which is the universe in which Section 47(b)(2) operates—what is left to sue about, such that a party with a rescission claim would be in a position to raise it as a defense? By that point, an aggrieved party is most likely to seek rescission affirmatively in order to…

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