#CL- Vitiating factors Flashcards
what is a vitiating factor
something which makes contract voidable if claimant wishes to
what are the two types of vitiating factor we study
economic duress
misrepresentation
what is misrepresentation
when someone wouldn’t have entered if they understood truth
what are the remedies for misrepresentation
main is recision- sets claimant to original position
unavailable when unable to reset, 3rd party was involved, there was a delay or contract affirmed or continued
what did misrepresentation act 1967 do
allow for damages as compensation when there is misrepresentation
what are the 4 things which must be proven to show misrepresentation
false statement
material fact
made by party involved in contract
designed intended to induce c into contract
what can a false statement be
not updating facts half truths duty to tell (ie insurance) conduct CPAR rules
fletcher v krell
she had not been asked about marital status to didn’t have a duty to disclose- not false statement
With v O’Flanagan
Doctor doesn’t update profits when selling surgery so held to be false statement
Dimmock v Hallett
held that this was a half truth as the seller did not tell the buyer that all the tenants would be leaving soon
Tate v Williamson
advisor told to client to sell his land for cheaper to clear debts when it was in-fact so the advisor could buy it for cheaper- held to be misrepresentation.
Lambert v Co-Operative insurance
woman did not tell her insurance company about her husbands recent theft conviction- this was held to be misrepresentation
spice girls ltd v Aprilla world service
spice girls done advert but did not say that geri was leaving. this mad the advert useless. false statement was through the spice girls conduct.
what must be a material fact be
must not be opinion and it is more important if the person is knowledgeable
Bisset v Wilkinson
person selling land is asked about how many sheep it would hold. he doesn’t have knowledge and guesses- not material fact as it was opinion
Edington v Fitzmaurice
company lied about what it was doing with its money- held to be misrepresentation.
what does made by party to contract mean
made by person involved in contract.
what must the false statement be
must induce person to enter a contract, claimant must have relied on the statement.
attwood v small
miner makes false statement about earnings of a mine- surveryor confirmed this incorrectly. not misrepresentation as D had relied on surveryor not miner
Redgrave v Hurd
relied on sellers accounts when buying solicitor practice, this was misrepresentation.
Museprime properties ltd v Adhill properties ltd
reliance on statements to be true so it was misrepresentation.
what are the three types of misrepresentation
fraudulent
negligent
innocent
What is fraudulent misrepresentation and what is the remedy
Intentional or reckless with the truth
Recission and/or damages under tort of deceipt
What is negligent misrepresentation and it’s remedy
Fell below expected standard ( someone’s job )
Recission and/or damages under tier of negligent misstatement
What is innocent misrepresentation and what remedies are there
D believed it was true
Recission or damages
Clarke v Dickinson
Recission not available as couldn’t return to original position
Long v Lloyd
By using lorry after its breakdown. He indicated willingness to continue the contract
Leaf v international galleries
Even though he did not know the truth, there was a delay so not allowed to claim
Lewis v averay
Claim for recission not allowed as it would be unfair to take the car off third party
Howard marine v Ogden and sons
Not innocent, it was negligent because they had the registration with the right details on
Derry v peek
Careless to whether what they said was true so it was not fradulent
What is economic duress
Wouldn’t have entered contract without pressure or coercion to financial situation
What is the main remedy in economic duress
Restitution d has to give C back any money or property. Avoids future obligations
Not damages
What must C prove for economic duress
Lack of choice
Illegitimate threat
Significant cause to entering contract
What case set up the indicators for lack of choice
Pao on v Lau Yiu Long
What are the pao on indicators
Protest
No option out
Independent advice
Tried to escape
What does illegitimate threat mean
Not necessarily unlawful, more then rough business dealings, improper threat
What must ED be
Significant cause to entering a contract
Atlas v kafco
Ed was allowed for non delivery of goods
CTN cash and carry v Gallagher
Threat to withdraw credit faculty lawful threat so not economic duress
