LECTURE ONE

Question 1

MISREPRESENTATION

Answer 1

About truth e.g. someone has told you something about a product which turns out to be untrue of which you relied upon when buying the product.

establish there is an untruth FIRST and then why.

Question 2

to make a contract:

Answer 2

1. agreement
2. consideration
3. intention to create legal relations
4. formalities (only sometimes)

Question 3

privity

Answer 3

unless exceptions, two parties entering into a contract meaning the only ones that can sue/be sued are those within the contract.

Question 4

vitiating factors

Answer 4

three party relationship e..g husband / wife / bank (etridge)

• when bank on notice, need to take particular steps, applies as much to misrep as undue
• many misrep cases can be third party, not just UI

Question 5

No duty of disclosure under E law…

Answer 5

• you can be silent: if you are contracting party, e.g. seller, you dont have to say anything at all.
• only when you start to speak that potential problems begin.
• stems from the same place of e law that there is no liability for a failure to act w/out something wrong
• THUS is you remain silent, in most situations, wont be held liable.
• if the buyer assumes something: ON THEM.

CONFIRMED in Keates V Cadogan: even if one party is desperate to know something during negotiations, you don’t have to tell them: entitled to keep mouth shut.

Question 6

positive duty?

Answer 6

positive action of SOME sort is necessary…

(Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, 211 “there must be a representation of fact made by words, or, it may be, by conduct…, mere silence, however morally wrong, will not support an action.”)

first thing to establish: you are dealing w/something which can properly be classified as an act: something that was said OR done NOT just looking at a case of mere silence.

Question 7

NOT unique to E law: but not common…

Answer 7

• Other jurisidictions impose positive duties to speak when that information would be valuable to someone making a contractual decision
• Some areas of e law, these duties to speak have been imposed.

Question 8

exceptions:

Answer 8

o Contracts entered into under the upmost faith, require you to speak
o Seen within…
o Eg. Insurance contract, partnership contracts, family settlements, contracts where the parties are in a fiduciary relationship

o If a insurer asks you a Q before you enter into a contract: you HAVE to answer it, cannot stay silent and disclose information.

e. g. travel insurance and failed to disclose previous medicial condition, and you make a claim, your claim will NOT be satisfied.
- be scrupulously honest.

Question 9

another exception…

Answer 9

CONSUMER LAW:
- where you are a trader/seller/business selling to a consumer, you have an obligation to dislcose information that it would be misleading NOT to disclose

• found in the misleading provisions from unfair trading regulations
• in some places, the general rule of their being no duty to disclose, has been displaced by specific interventions where it is though to be important to require people to speak
• where its though there is a power balance, as in a consumer situation…

Question 10

pre contract statements and contract terms

Answer 10

• pre contract representations: things said BEFORE you enter into a contract
• THERE IS an important relay between precontractual rep and what eventually becomes con terms
• e.g. selling a house, seller says ‘do you want to buy this house?’ a defined piece of property

Question 11

pre contract statements and contract terms

Answer 11

• pre contract representations: things said BEFORE you enter into a contract
• THERE IS an important relay between precontractual rep and what eventually becomes con terms
• e.g. selling a house, seller says ‘do you want to buy this house?’ a defined piece of property
• making a rep that the negotiations are relating to the house in Q
• If it turns out, when conversations are conc, and buying (disappointed, turns out to be a shed)
• MISREP

Question 12

tortious

contract

Answer 12

tortious: aimed to put you in the positiion you would have been had it never of happened
contract: aims to put you in the position had the seller acted properly by the terms of contract

Question 13

pre-contractual statements

Answer 13

can also be included into the ensuing contract as terms or give rise to a collateral contract

• this is a matter of incorporation and intention

(Heilbut, Symons & Co v Buckleton)

• If a pre-contractual statement is also a contract term and it is false: misrep. + breach of contract (which gives a range of remedies, some of which may be more advantageous than others)

Question 14

case for misrep of statements

Answer 14

(Heilbut, Symons & Co v Buckleton)

Question 15

need to prove 7 things for misrepresentation…

Answer 15

Statement of either fact/law by representor to representee that is false/material and induces the party to enter into the contract (either at all, or the terms they eventually do)

Question 16

representor

Answer 16

(seller); person who is selling the goods/business etc ALSO the person who is making the misrepresentation (Saying the thing that turns out to be untrue)

Question 17

representee

Answer 17

person being told the information and acts upon it to enter into the contract
They are going to be the claimant in legal action: person who believes what is said to them and makes a decision on this basis.

Question 18

statements

Answer 18

LOOK AT THEM W/AN OBJECTIVE ANALYSIS
but a subjective tint…

e.g. take into account things like business experience, might approach what someone says more cynically.

Question 19

what is a statement?

Answer 19

definitive expressions that you can determine whether they are true / false

Question 20

express statement

Answer 20

• Conveyed through written or spoken words

• E.g. someone sends you a letter that says my bus makes 1mill a year : clearly a statement
• Written/spoken

Question 21

implied statement

Answer 21

• Conveyed by actions

• Do the actions of a particular person of the representor suggest a particular definitive or clear expression of something
• Does the way someone acts tell you something that you might rely upon

Question 22

implied statement cases

Answer 22

• Walter v Morgan – ““a nod or a wink, or a shake of the head, or a smile”

• E.g. buyer points at painting and asks if it is a Picasso, and you If you nod enthusiastically, then is positively indicated through actions that this is a true statement
• Did the actions in response to someone’s queries statements : did it give rise to an implied statement by conduct that it was true

Things you do in terms of behaviour can give rise to an implied statement…
• Bodger v Nicholls
Taking a cow to market states absence of knowledge of disease
- If you are taking a cow to market, assuming it is of good health and not diseased
- Actions: not just e.g. nodding, can be an implied statement
- Particular actions to ensure someone cannot see w/their own eyes what would be obvious, can be seen as an implied statement

Question 23

Schneider v Heath

Answer 23

• If actively conceal know defects there may be an implied statement that there are no defects – see Schneider v Heath - ship positioned in such a way to prevent inspection

• In heath: ships w/holes, defective WOULD NOT WANT TO BUY
• Thus, the sellers position it in such a way that when the buyers come to look at it, cannot see the problems
• Impliying stating THEY DON’T EXISIT
• Stating there is no problems if presenting the ships in a certain way
• Interpreting actions widely to create implied statements.

Question 24

Spice Girls Ltd v Aprilia World Service:

Answer 24

• Aprilla really wanted the spice girls to work for them
• Bringing out mopeds, five members of spice girls to take part in their advertising
• The management of spice girls agreed.
• Unfortunately for the spice girls by the time that they signed the contract, they knew one of the spice girls was leaving
• She had given notice to leave the band and they knew she would be gone before the promotional material would be shot
• By the management conduct, that 5 would take part in this promotional exercise, it became FALSE
• Conduct suggested 5 BUT there was only 4
• Implied statement: aprilla had been misrepresented too.

Spice Girls management signed a deal for the Spice Girls to promote Aprilia mopeds. Implicit representation that all 5 members of the Spice Girls would be part of the group. In fact Geri was in process of leaving.
“the representation implicit in the approval and use of the promotional material was false when made, or to the extent it was made before March 9 it became false on March 9” (Morritt VC)