FL LAW - DEFENSES TO CONTRACT FORMATION

Question 1

MISREPRESENTATION IN CONTRACT LAW AND FLORIDA DISTINCTIONS

A MISREPRESENTATION IS: AN UNTRUE ASSERTION OF FACT.

TO CONSTITUTE A FACT, THE ASSERTION MUST BE ABOUT A PRSEBT EVENT OR A PAST CIRCUMSTANCE.

ASSERTION OF AN OPINION SUCH AS A BELIEF OR JUDGMENT AS THE QUALITY, VALUE OR AUTHENTICITY OF AN ITEM OR THE OCCURRENCE OF A FUTURE EVENT, IS GENERALLY NOT AN ASSERTION OF FACT.

AN ASSERTION OF OPINION MAY, IF REASONABLE, BE INTERPRETED BY A PARTY AS AN ASSERTION THAT THE PERSON KNOWS FACTS THAT ARE NOT INCOMPATIBLE WITH THE OPINION OR THAT THE PERSON KNOWS FACTS SUFFICIENT TO JUSTIFY THE FORMATION OF THE OPINION.

PROVISION “AS IS” IN A CONTRACT CAN SHIFT THE RISK TO A BUYER IN THE ABSENCE OF UNCONSCIONABILITY.

A MISREPRESENTATION CAN BE INNOCENT, NEGLIGENT OR FRAUDULENT. WHAT MUST BE PROVEN TO MAKE A CLAIM OF FRAUDULENT MISREPRESENTATION?

Answer 1

FRAUDULENT MISREPRESENTATION REQUIRES PROOF OF THE FOLLOWING:

1. THE REPRESENTATION IS FRAUDULENT
   a. A FALSE ASSERTION OF FACT MADE KNOWINGLY OR RECKLESSLY WITHOUT KNOWLEDGE OF ITS TRUTH; AND
   b. WITH INTENT TO MISLEAD THE OTHER PARTY.
2. THE MISREPRESENTATION INDUCE ASSENT TO THE CONTRACT; AND
3. THE ADVERSELY AFFECTED PARTY JUSTIFIABLY RELIED ON THE MISREPRESENTATION.

FL DISTINCTION

RELIEF FOR FRAUDULENT MISREPRESENTATION IS GRANTED WHEN:

1. A PERSON MAKES A FALSE STATEMENT CONCERING A MATERIAL FACT;
2. THAT PERSON KNOWS THAT THE REPRESENTATION IS FALSE; AND
3. THE REPRESENTATION WAS MADE WITH THE INTENT OF INDUCING ANOTHER TO ACT ON IT; AND
4. THE PARTY ACTING IN RELIANCE ON THE REPRESENTATION WAS INJURED AS A RESULT.

Question 2

A SELLER IS NOT EXEMPTED BY THE DOCTRINE OF CAVEAT EMPTOR (“BUYER BEWARE”) FROM RESPONSIBILITY FOR THE STATEMENTS AND REPRESENTATIONS HE MAKES TO INDUCE A BUYER TO ACT WHEN?

Answer 2

UNDER THE CIRCUMSTANCES, THE STATEMENTS AMOUNT TO FRAUD.

A RECIPIENT MAY RELY ON THE TRUTH OF A REPRESENTATION, EVEN THOUGH ITS FALSITY COULD HAVE BEEN ASCERTAINED HAD HE MAE AN INVESTIGATION UNLESS HE KNOWS THE REPRESENTATION TO BE FALSE OR ITS FALSITY IS OBVIOUS TO HIM.