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A Level Law OCR Paper 3: The Nature of Law and Law of Contract > Misrepresentation > Flashcards

Misrepresentation Flashcards

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1
Q
  1. Misrepresentation is a Vitiating Factor that makes a…
A

Misrepresentation is a Vitiating Factor that makes a Contract Voidable. The Victim can rescind (end) the contract, known as ‘rescission’. Common Law and Statute Law rules apply.

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2
Q
  1. Misrepresentation occurs during the formation of a contract and involves a…
A

Misrepresentation occurs during the formation of a contract and involves a false statement of material fact made by a party to the contract that induces the other party to enter the contract. There are three types; fraudulent, negligent and innocent.

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3
Q
  1. A False Statement of Material Fact means something…
A

A False Statement of material fact means something untrue. Silence cannot be a false statement (Fletcher v Krell), unless the representor remains silent when a statement that was initially true then becomes untrue (With v O’Flanagan).

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4
Q
  1. A Half-Truth…
A

A Half - Truth can be a Misrepresentation (Dimmock v Hallett).

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5
Q
  1. It cannot…
A

It cannot be merely an opinion (Bisset v Wilkinson).

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6
Q
  1. It can be made by conduct…
A

It can be made by conduct / circumstances as well as words (Spice Girls v Aprilia).

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7
Q
  1. The False Statement must be…
A

The False Statement must be made by one of the parties to the contract, not a third party.

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8
Q
  1. The False Statement must induce the other party to…
A

The False Statement must induce the other party to enter the contract (Avon Insurance v Swire), which means it must be relied on by the claimant (Attwood v Small), but does not have to be the only reason for entering the contract (Edgington v Fitzmaurice)

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9
Q
  1. Generally a false statement of future intention…

However, a false statement of future intention will be a…

A

[IF RELEVANT]

Generally a false statement of future intention (a promise to do something in the future) is not a false statement of fact.

However, a false statement of future intention will be a false statement of fact if the maker of the statement has no intention of carrying it out.

(Edgington v Fitzmaurice).
* Here

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10
Q
  1. The Type of Misrepresentation is Fraudulent…
A

The Type of Misrepresentation is Fraudulent (knowingly or recklessly wrong, as defined in Derry v Peek) where the remedy is rescission and damages in the tort of deceit, as established in East v Maurer.

  • Here
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11
Q
  1. The Type of Misrepresentation is Negligent…
A

The Type of Misrepresentation is Negligent (carelessly wrong, as defined in Hedley Byrne v Heller).

Under S2(1) of The Misrepresentation Act 1967, once C has proven there has been a misrepresentation, the burden of proof is on the person making the statement that there were reasonable grounds to believe the statement was true.

If reasonable grounds can’t be shown, then the statement will be negligent. The remedy is rescission and/or damages, as established in East v Maurer and S2(2) of The Misrepresentation Act.

  • Here
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12
Q
  1. The Type of Misrepresentation is Innocent…
A

The Type of Misrepresentation is Innocent (honestly wrong – the maker of the statement was able to show reasonable grounds for making the statement) under S2(1) Misrepresentation Act 1967. The remedy is rescission OR damages (S2(2)).

  • Here
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13
Q
  1. Recission will not be awarded if…
A

[IF RELEVANT]

Recission will not be awarded if it is impossible.

  • Here
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14
Q
  1. If the innocent party decides to continue with the contract…
A

[IF RELEVANT]

If the Innocent party decides to continue with the contract despite being aware of the misrepresentation, the right to rescind is lost (Long v Lloyd).

  • Here
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15
Q
  1. If the innocent party delays bringing a…
A

[IF RELEVANT]

If the innocent party delays bringing a claim, the right to rescind is lost (Leaf v International Galleries)

  • Here…
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16
Q
  1. The Right to Rescind is also lost if a Third Party has…
A

[IF RELEVANT]

The Right to Rescind is also lost if a Third
Party has gained rights over property, as in Lewis v Averay:

  • Here
17
Q
  1. If there is a consumer insurance contract, then answers to questions must be answered…
A

[IF RELEVANT]

If there is a consumer insurance contract, then answers to questions must be answered honestly and reasonably, as written in The Consumer Insurance (Disclose and Representations) Act 2012, modifying the decision in Lambert v Co-Op.

  • Here
18
Q
  1. In a CONSUMER contract, whilst the common law rules will apply…

Under Section 11 goods must match the…

Under Section 13…

  • Here
A

[IF RELEVANT]

In a CONSUMER contract, whilst the common law rules will apply, so too will the **Consumer Rights Act 2015. **

Under Section 11 goods must match the description and under Section 13 goods must match a sample provided.

  • Here
19
Q
  1. In a BUSINESS TO BUSINESS contract, whilst the common law rules will apply…

Under Section 13 goods must match…

A

[IF RELEVANT]

In a BUSINESS TO BUSINESS contract, whilst the common law rules will apply, so too will the **Sale of Goods Act 1982. **

Under Section 13 goods must match the description and must match a sample provided.

  • Here
20
Q
  1. In an INSURANCE contract…

The consumer must take reasonable care not to carelessly make…

A

[IF RELEVANT]

In an INSURANCE contract, the Consumer Insurance Act 2012 will apply.

The Consumer must take reasonable care not to carelessly make a Misrepresentation, and must not deliberately make a Misrepresentation.

  • Here
21
Q
  1. If there is an OMISSION in a consumer contract, where information is deliberately…

Here [eg D left out the fact that the car would be expensive to insure, so and so will face additional penalties.]

To Conclude…

A

[IF RELEVANT]

If there is an OMISSION in a consumer contract, where information is deliberately left out or is presented in an unclear way, the Consumer Protection Regulations 2008 and 2014 set out additional Criminal and Civil Penalties that will apply.

  • Here

To Conclude [eg - there has/has not been a misrepresentation, and so C can rescind the contract and [insert appropriate remedy].

A Level Law OCR Paper 3: The Nature of Law and Law of Contract (17 decks)

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