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Exam cards - Contract > Misrep > Flashcards

Misrep Flashcards

1
Q

Mnemomic for structure?

A

I Poured Coffee Carelessly Risking Castration

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2
Q

Poole’s definition of a misrepresentation

A

An unambiguous false statement of fact made to the claimant which induces the claimant to enter into the contract with the statement maker

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3
Q

Dimmock v Hallet

A

A mere puff is not actionable

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4
Q

Carlill v Carbollic Smokeball

A

Adverts are generally mere puff, though this wasn’t

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5
Q

J Evans v A Merzario

A

A misrepresentation can also be a term of the contract though this is beyond the remit of the question

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6
Q

McInerny v Lloyds

A

Ambiguous so not misrepresentation

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7
Q

Avon v Swire

A

Substantially false

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8
Q

Horsfall v Thomas

A

Statement must be made to claimant so they are acting upon it

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9
Q

Commercial Banking v RH Brown

A

Statement addressed to a 3rd party can be an actionable misrep if the 3rd party is certainly going to pass it on (authority fo statement made to claimant)

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10
Q

Keates v Earl of Cadogan

A

No general duty of disclosure

Silence in general is not a statement of fact so is not actionable

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11
Q

Pankhania v Hackney

A

Statement of law is actionable

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12
Q

Gordon v Selico

A

Conduct is actionable despite silence

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13
Q

SPice Girls v Aprilla

A

Conduct is actionable despite silence

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14
Q

Bisset v Wilkinson

A

Statement of lay opinion is not actionable

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15
Q

Smith v Land Corp

A

Statement with greater knowledge is actionable

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16
Q

Esso v Marden

A

Statement of an expert is actionable

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17
Q

Wales v Wadham

A

Statement of future intent is not actionable and there is no duty to inform the other party of a change of intent

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18
Q

Edginton v Fitzmaurice

A

Future intention is actionable if there was never any real intention

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19
Q

Sykes v Taylor-Rose

A

In some circumstances there will be a duty to disclose information. E.g. buying a house

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20
Q

Dimmock v Hallet (2)

A

A half truth is actionable if it is misleading

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21
Q

With v O’Flannagan

A

A continuing representation is actionable

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22
Q

Hood v West End Motors

A

Silence is actionable in contracts of the utmost good faith where there is a duty to disclose a fact (Land/insurance)

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23
Q

Pan Atlantic v Pine Top

A

A statement is material if it would induce the reasonable man. This presumption can be rebutted

24
Q

Smith v Chadwick

A

Where the reasonable man would be induced there is a presumption that the claimant is induced, unless this presumption is rebutted with evidence that thy were not subjectively induced

25
Q

Museprime v Adhill

A

Where no inducement presumed, this can be rebutted by evidence showing that the claimant was induced

26
Q

Redgrave v Hurd

A
  1. No general duty of investigation

2. No inducement where the claimant knows the statement to be untrue

27
Q

Attwood v Small

A

No inducement if you rely on your own investigations

28
Q

Edginton v Fitzmaurice (2)

A

If misrepresentation is a factor at all then the statement is actionable

29
Q

JEB Fastners v Mark Bloom

A

The misrep must have been A factor, does not have to be the only factor

30
Q

S pearson v Dublin Corp

A

Investigation irrelevant in fraudulent misrepresentations

31
Q

Derry v Peek

A

A fraudulent misrepresentation is made;

  • Knowing the statement is untrue
  • Without belief in the truth
  • Reckless to the truth
32
Q

What remedies are available for fraudulent misrepresentation?

A
  • Damages
  • Indemnity
  • Rescission
33
Q

Standard chartered banking v Pakistan National Shipping

A

Contributory negligence not available under fraudulent misrepresentation

34
Q

Doyle v OLby

A

Damages can be claimed for all loss flowing from the transaction, provided not too remote

35
Q

East v Maurer

A

Loss of profits can be claimed, compared to hypothetical ideal

36
Q

Chappel v Downs c/f Acquitane v Laporte

A
  1. If any profit made lost profit cannot be claimed

2. If you can prove you would have made a substantially greater profit this is claimable

37
Q

Thomas Witter v TBP

A

Fraudulent misrep if you are reckless to the truth - flagrant disregard for the truth

38
Q

New SMith Court v Scrimgeour Vickers

A

Damages reduced by benefit acrrued to the claimant

39
Q

Erlanger v New Sombrero

A

Court will do what is practically just - Relevant for rescission

40
Q

Royscott v Rodgerson

A

Fiction of fraud. Negligent misrepresentation treated the same as fraudulent misrepresentation

41
Q

Negligent misrepresentation

A

S2(1) MA 1967 - False statement of fact which the defendant believes but is unreasonable to believe - Howard Marine v Ogden

42
Q

What remedies are available for misrepresentation?

A

All of them; Rescission, damages, damages in lieu of rescission

43
Q

Damages for negligent misrepresentation

A

Royscott v Rodgerson - treated the same as fraudulent misrep other than that only damages flowing from particular misstatement are claimable

44
Q

Poole (obiter)

A

Unlikely to get loss of profits in negligent misrepresentation

45
Q

Damages in lieu of rescission under negligent misrepresentation

A

Zanzibar v British Aerospace - If there are bars to rescission then damages in lieu of rescission are not available (current state of law)
Thomas v TBP - If rescission ever available then damages in lieu of rescission can be claimed

46
Q

Contributory negligence in negligent misrepresentation

A

Gran Gelato - Yes can claim contrib neg if concurrent claim in tort (Vesta v Butcher)
Royscott v Rodgerson - No cannot claim contrib neg. (Grey area)

47
Q

Innocent misrepresentation

A

S2(1) MA 1967Where a false statement of fact is made, but it is genuinely believed, and it is reasonable to believe it (objective test)

48
Q

Remedies under innocent misrep

A

Rescission, damages in lieu of rescission, indemnity (most relevant here)

49
Q

Whittington v Seale - Hayne

A

Business tax indemnified for turkey farm

50
Q

Negligent misstatement

A

Where a 3rd party makes a misrepresentation

51
Q

Hedley Byrne v Heller

A

Test for negligent misstatement;

  • Foreseeable reliance
  • Proximity
  • Fair just and reasonable
52
Q

What remedies are available for negligent misstatement?

A

Only damages which must be foreseeable (Wagonmound) (tortious measure)

53
Q

What are the bars to recission?

A

Third party rights (Phillips v Brooks)
Affirmation (Long v Lloyd)
Impossibility (Clarke v Dickinson)
Lapse of time (Leaf v International Galleries)

54
Q

UCTA in relation to exemption clauses

A

S3 - Can only exclude liability for a misrepresentation as far as is reasonable (S11)

55
Q

S11 - UCTA 1977 - Reasonableness test

A
  • Fair and reasonable on circumstances
  • At time contract entered into
  • BoP is on party seeking to enforce term

Exam cards - Contract (3 decks)

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