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English legal system and contract -law > contract: misrepresentations, Privity and Terms > Flashcards

contract: misrepresentations, Privity and Terms Flashcards

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1
Q

what is a misrepresentation?

A

the right to make a claim in court based on the grounds of what someone has promised before a contract is agreed

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2
Q

what are the three classifications of satements in law

A
  • mere puffs (sales talk)
  • representations
  • terms
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3
Q

what is a representation

A

a represenation is something said in the discussion or negotiaiton of signign and agreeing to a contract
these arent legally binding

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4
Q

what is actionable misrepresentation

A

developed to allow people to claim against those who have broken representations

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5
Q

what requirements do representations have to meet to qualify for actionable misrepresentation

A

the representations must have been:
- an untrue statement
- material fact not an opinion
- unsed to induce you to sign the contract

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6
Q

statement or fact?
someone who holds specialist knowledge

A

if someone who holds specialist knowedlge in the area of the contract what they say is taken as fact in the court of law

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7
Q

opinion or fact?
words or conduct

A

if someones conduct or word misrepresents the other party their actions are taken as fact
(spicee girls v aprilla world services)

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8
Q

opinion or fact?
if something hasnt happend yet

A

if a eventuality or sitiation hasnt happend yet the statement made will be one of opinion an non punishable in court

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9
Q

chess v williams specialist knowledge

A
  • 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
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10
Q

spice girls v aprilla conduct

A
  • 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
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11
Q

bisset v wilkinson something that hasn’t happened yet

A

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

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12
Q

what are the three types of misrepresentation

A
  • fraudulent
  • negligent
  • wholly innocent
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13
Q

fraudulent misrepresentations

A

when it can be proven that a false representation has been made knowingly and or the person making the statement if it was unture

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14
Q

why are fraudulent misreps hard to prove

A

the bar to prove fraud is very hight as the court have to believe that is happened beyond reasonable doubt

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15
Q

what damages can you claim if fraudulent misrep is proven?

A
  • 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
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16
Q

what act introduced negligent and wholly innocent

A

1967 misrepresentaitons act added the two other destinctions as proving fraudulent was very hard to do

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17
Q

what is negligent misrep

A

no reasonable ground to believee what they are saying is true
not lying but being careless

18
Q

why is it far easier to prove neg misrepe

A

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

19
Q

what damages can be given for neg mis

A
  • right to recission and claim damages
20
Q

wholly innocent

A

the person who made the statement at the time believe it to be true e

21
Q

what damages can you get for wholly. innocent

A

reccision but no damages

22
Q

what is privity of terms

A

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

23
Q

what issue does privity create

A

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

24
Q

what contract rights do third parties have now

A

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

25
Q

what is an expressed term?

A

a term which is agreed to by both parteies in a contract either verbally or in writing

26
Q

what is an implied terms

A

implied terms arent expressed in the contract but at legally binding enfroced by the law

27
Q

what is a condition

A

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

28
Q

what is a warranty

A

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

29
Q

what is an example case of breach of warranty

A

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

30
Q

what is a innonomate term

A

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

31
Q

what part of law are implied terms mostly seen in

A

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

32
Q

section 9 of the consumer goods act

A

it is implied that when a product is bought that it should meet the standards thata reasonable person would consider satisfactory

33
Q

section 10 of the consumer goods act

A

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

34
Q

section 11 of the consumer goods act

A

things sold must correspond with the desrcitiion of the product

35
Q

consumer protection act 1987

A

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

36
Q

how are damages calculated in civil law

A

available as of right

37
Q

contract (right of third parties) act year?

A

1999

38
Q

Misrepresentation act

A

1967

39
Q

consumer protection act

A

1987

40
Q

consumer rights act

A

2015

41
Q

if the answer to an damage test is yes what is the innonomate term?

A

a condition

English legal system and contract -law (6 decks)

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