False Peliminary Statement Flashcards

0
Q

What are the classification of statements you need to assess in a question?

A

Puff -
Representation
Term

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1
Q

If there is not a valid contract, or you are not sure there is a valid contract, what do you need to consider?

A

A claim for negligent misstatement. Hedley Byrne principle of a special relationship.
Camparo tests
Pure economic loss is claimable

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2
Q

What factors need addressing before addressing whether the statement is a term or representation?

A

You can bring a claim for breach or misrepresentation or both.

No double recovery.

Any exclusion clause for misrepresentation only valid if it satisfies the reasonableness test set out in section 11 UCTA

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3
Q

What is the primary test for whether a statement is a representation or a term?

A

Primary test - what was the common intention of both parties?

Objective test - what conclusion a reasonable person would draw from the statement? Oscar Chess v Williams

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4
Q

What are the key guidelines for whether a statement is a term or a representation?

A

Does one party have greater skill or knowledge?

If the maker of the statement has greater skill, then more likely to be a term (Dick Bentley v Smith)

If recipient -then more likely to be a representation (Oscar chess v Williams)

Is the oral statement repeated in the written contract? If so - usually a term. If not - usually a representation (routledge v mckay).
But the court can decide it to be a term. And the contract is partly oral and partly written. (Birch v paramount estates)

Did the recipient make it clear that statement was of vital importance?
If so - more likely to be a term (bannerman v white)

Did the maker of the statement ask the other to verify it? If so, more likely to be representation (Ecay v Godfrey)

If they say ‘oh don’t bother’ - then more likely to be a term (shawel v reade)

If there is a lapse of time - then representation (routledge v McKay).

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5
Q

If the maker of a statement has greater skill and knowledge?

A

More likely to be a term

Dick Bentley v Harold Smith

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6
Q

If the recipient has greater skill and knowledge?

A

More likely to be a representation

Oscar chess v Williams

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7
Q

Is the oral statement is repeated in contract?

A

If so - more likely to be a term
If not - then likely to be representation

Routledge v McKay

But contracts can be partly oral and written so can still be term

Birth v Paramount Estates

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8
Q

If there has been a delay between making the statement and contract?

A

More likely to be representation?

Routledge v Mckay

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9
Q

Did the recipient of the statement make it clear it was of vital importance?

A

If so - more likely to be a term

Bannerman v White

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10
Q

Did the maker ask the recipient to verify the statement?

A

If so, more likely to be representation

Ecay v Godfrey

If they say, don’t bother to check that out, more likely to be a term.

Shawel v Reade

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11
Q

If the statement is deemed a term what do you do?

A

Always suggest that it could be deemed a term.

Breach of contract - Robinson v Harman

Hadley v Baxendale

If its a mis description of goods, consider breach of s13 SGA and a 3 of SGSA

Additional remedies for consumers.

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12
Q

What is the definition of a misrepresentation?

A

A false statement of fact made by one party of a contract to another, before the contract was agreed, which was one of the factors to induce that party to enter into the contract.

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13
Q

Is silence normally a statement that could be misrepresentation?

A

No.

Hamilton v Allied Domecq

Apart from fiduciary duties. Or contracts of the utmost good faith

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14
Q

What about when a fact is true but then there is a change in circumstances before the contract is finalised which makes the statement untrue.

A

Failure to disclose the change in circumstances may amount to misrepresentation

With v O’Flanagan

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15
Q

The statement must be a fact. But can an opinion still be misrep?

A

Yes. If the opinion is not genuine, then it’s misrep.

Smith v Land and House

But opinion in ignorance as in Bisset v Wilkinson is not misrepresentation (guessed how many sheep there are).

16
Q

Conduct can amount to misrepresentation.

A

Spice girls v Aprilla

17
Q

Half truths can be misrepresentations?

A

Yes - Curtis v cleaning

So for e.g. If its true at the moment but you know it won’t be true in foreseeable future

18
Q

What if you act on external advice? Ie go and ask a professional surveyor after your mate says a house is fine.

A

If you don’t rely on the statement at all, then it’s not misrepresentation.

Atwood v small

19
Q

Verification - what if a statement states -company worth 300,000 pounds but worth checking into.?

A

No verification is necessary. It can still count as misrepresentation

Redgrave v Hurd

However, if true position is set out in contract, then thats not the case.

Peekay v Australia

Though not with consumers - Curtis v cleaning

20
Q

What about statements of intention?

A

Statement of intention wont amount to misrep unless it can be shown that intention was never held. Ie money borrowed for one reason, when actually all along for something else

Edgington v Fitzmaurice

21
Q

Remedies for misrepresentation. What is the effect of misrepresentation?

A

The effect of misrepresentation is to make the contract voidable. Valid until innocent party rescinds

22
Q

How can you rescind?

A

Let the other party know.

If that’s impossible, a reasonable attempt
Car v Caldwell

23
Q

Effect of rescission?

A

Neither party need perform any future obligations.

Each party returns money/property to one another.

24
What are the 4 bars to rescission?
Delay Affirmation An innocent party gaining interest in the property Impossible substantially to restore goods/property
25
What's the case for delay as a bar to rescission?
Leaf v international galleries
26
Affirmation as a bar to rescission
Can be implied or express
27
Where it is impossible to substantially restore goods/property? Whats the case.
Crystal palace v Dowie Although, rescission does not have to be exact Erlanger v Sombrero
28
Damages in lieu of rescission. Set out when they will be used.
Section 2(2) of the Misrepresentation Act 1967 at the discretion of the court Misrep must be non-fraudulent Won't be awarded if any bars to rescission Usually only when misrep is regarding minor matter where rescission would be i equitable
29
What has to be proved for fraudulent misrep?
That the statement was made knowingly without belief in its truth ( or reckless and careless to the veracity of the statement) Derry v Peek
30
How are damages awarded for fraudulent misrep?
Tortious rules apply. Put party in position had contract and misrep not been made. Usual rules of remoteness dont apply
31
Non-fraudlent misrep - how are damages awarded?
Section 2(1) of misrep act Once c has established misrepresentation, d must prove he had reasonable grounds to believe and did honestly believe up to the time of contract was made that the facts represented were true Hard - Howard Ogden v marine Royscott means fraudulent and non-fraudulent misrep are done in same way. Criticised by lord steyn in Smith v Scrimgeour
32
East v Maurer
In calculating damages, if it can be shown that C would've bought another business, he will be awarded his original capital and a bit more to take account of the profit he might've made from that business