contract: misrepresentations, Privity and Terms Flashcards
what is a misrepresentation?
the right to make a claim in court based on the grounds of what someone has promised before a contract is agreed
what are the three classifications of satements in law
- mere puffs (sales talk)
- representations
- terms
what is a representation
a represenation is something said in the discussion or negotiaiton of signign and agreeing to a contract
these arent legally binding
what is actionable misrepresentation
developed to allow people to claim against those who have broken representations
what requirements do representations have to meet to qualify for actionable misrepresentation
the representations must have been:
- an untrue statement
- material fact not an opinion
- unsed to induce you to sign the contract
statement or fact?
someone who holds specialist knowledge
if someone who holds specialist knowedlge in the area of the contract what they say is taken as fact in the court of law
opinion or fact?
words or conduct
if someones conduct or word misrepresents the other party their actions are taken as fact
(spicee girls v aprilla world services)
opinion or fact?
if something hasnt happend yet
if a eventuality or sitiation hasnt happend yet the statement made will be one of opinion an non punishable in court
chess v williams specialist knowledge
- chess brought a car believing it was a 1938 model
- he sold the car on to a dealer (willaims) as a 1938 model
- willaims agreed and then found out it was much older an tried to due chess
- however as chess wasnt an experet and was going off what he was told this statement was one of opinion and he wasnt sued
spice girls v aprilla conduct
- spice girls hired by aprilla. to run a campaign for their new bikes
- took them abraod to shoot ect
- weeks before the launch gerry left the band making all their marketing redunant
- the conduct of the spice girls who knewe months before gerry would leave meant that they misrepresented thsmelves and had to pay aprilla back for thier costs
bisset v wilkinson something that hasn’t happened yet
bisset brought land off of wilkinson in new zeland and asked if it was okay for sheep farming
- bisset had inherited the property and never been so he said yes
- bisset moved in and it was swamp like unable to farm on. he tried to sue wilkinson
- but because he had never been there before and no one had tried to farm sheep before this wasnt a misrepresentation
what are the three types of misrepresentation
- fraudulent
- negligent
- wholly innocent
fraudulent misrepresentations
when it can be proven that a false representation has been made knowingly and or the person making the statement if it was unture
why are fraudulent misreps hard to prove
the bar to prove fraud is very hight as the court have to believe that is happened beyond reasonable doubt
what damages can you claim if fraudulent misrep is proven?
- right to rescission (allowing the dmaed party to walk away from the contract and be restoed to their pre contract position) and can claim damages
what act introduced negligent and wholly innocent
1967 misrepresentaitons act added the two other destinctions as proving fraudulent was very hard to do
what is negligent misrep
no reasonable ground to believee what they are saying is true
not lying but being careless
why is it far easier to prove neg misrepe
becuase the burden of proof swaps from the claimant to the defendent
it is verye hard for the defendent to prove that they werent being. careless and therofre it is far easier to win
what damages can be given for neg mis
- right to recission and claim damages
wholly innocent
the person who made the statement at the time believe it to be true e
what damages can you get for wholly. innocent
reccision but no damages
what is privity of terms
doctrine that argues that only the parties in a private contract have the right to sue
no one else can intervine or sue if they aren’t written into the contract
what issue does privity create
when agreements betwen family memebers to give eachother money after big occasiosn and thene the promise isnt fufilled the third party child who would be recieving that money cannot suee
ex tweddle v atkinson case over the dads paying the husband money for the wedding. one of the dads dies and the son sued to get hismoney he was promised but was denied as he was a third party
what contract rights do third parties have now
1999 act allows third parties to sue for breach of contract if:
- the TP was identified in the contract by name
- the TP must be given the express right to enforce the contract
- inentifies the benefit of the third. party being involved
what is an expressed term?
a term which is agreed to by both parteies in a contract either verbally or in writing
what is an implied terms
implied terms arent expressed in the contract but at legally binding enfroced by the law
what is a condition
the major agreements made in a contract
if a condition is breched damaged party is eligible to be repudied (walk away from contract) and get damages
what is a warranty
a smaller term of the contract which is far smaller and wont alter the main contract
(ex the colour of an iphone)
if breeched damaged party can get compensation but not repudation
what is an example case of breach of warranty
betteni v guy
- opera singer too ill for rehersals but made it to the main perfromace
- she was sacked and sued him for wrongful termination
- as she only brokea warranty and not a condition she was reinstated in the job by the court
what is a innonomate term
a term in a contract which is unclear wether it is a condition or a warranty
to find out the damaged needed when a innonomate term is broken is called the ‘damage test’: is the full benefit of the contract not going to be felt if this term is broken? if yes then the term is a condition and they have the right of repudation and damages
if the answer is no and the full benefit of the contract is still going to felt then the term broken is just a warranty
ex. hong kong shipping company v kawoaski
what part of law are implied terms mostly seen in
consumer law
suchas the consumer rights act in 2015
because purchasing items doesnt require communication (just handing over of money) if the seller sells you something faulty or not fit for purpose then it is the law that implies terms into that contract.
for example when you buy something from a shop a contract is made. an implied term of that contract is that the product will be fit for purpose. if not the seller has broken the terms of the contract
section 9 of the consumer goods act
it is implied that when a product is bought that it should meet the standards thata reasonable person would consider satisfactory
section 10 of the consumer goods act
it is implied that goods sold will be fit for its particualr purpose
if a vegan goes to a restaurant and makes thier diet known, and they are given a meat product the seller has broken the implied term of being sit for purpose
THIS IS A FORM OF STRICT LIABILITY THAT DOESNT NEED TO BE PROVEN
section 11 of the consumer goods act
things sold must correspond with the desrcitiion of the product
consumer protection act 1987
civil liability
- if someone gets hurt due to an unsafe defenctive prouct you can sue to manifacturer for:
- death
- personal injury
- or propoerty damage in excess of £275
how are damages calculated in civil law
available as of right
contract (right of third parties) act year?
1999
Misrepresentation act
1967
consumer protection act
1987
consumer rights act
2015
if the answer to an damage test is yes what is the innonomate term?
a condition
