Misrepresentation Flashcards
What are the elements of actionable misrepresentation?
- Unambiguous
- False
- Statement of fact
- Addressed to claimant
- Induces claimant to enter contract
What is not considered when deciding if a representation is unambigious?
Representee’s own unreasonable construction
What is required for a statement to be false?
Not substantially correct
What statements dont amount to statements of fact?
- Opinion
- Future intentions
- Silence
- mere puff
What can amount to a statement of fact?
- conduct
- statements of law
What are the exceptions to opinion not being a statement of fact?
o Representor has greater knowledge than representee
o Representor in position of superior knowledge/experience
o Not an actual opinion of representor
What are the exceptions to future intentions not being a statement of fact?
o Representor knows they cannot do it
o Representor doesn’t intend to do it
What are the exceptions to silence not being a statement of fact?
o Half truths
o Continuing representations (becomes untrue)
o Utmost good faith
What question is asked when deciding if a representation induced a representee to enter into the contract?
Was the representation material
How is it proven whether a representation was material?
Would a reasonable person have been influenced OR
was claimant subjectively influenced
When will a representation not be actionable misrepresentation?
- Statement was not communicated to C
- Statement did not affect C’s decision
- Statement known to be untrue by C
How may a representor prove that their statement did not induce the claimant to enter the contract?
C made own investigations and relied on that
What is contributory negligence?
where C failed to make investigations where reasonable to do so/investigated negligently
What is contributory negligence not available for?
Misrepresentations that are fraudulant
What is fraudulant misrepresentation?
False representation made:
- knowingly
- without belief in truth
- or recklessly
Can a failure to disclose a change in circumstances be fraudulant misrepresentation?
If deliberate or dishonest
What is negligent misrepresentation?
Fails to show reasonable grounds to believe and/or didn’t believe statement
What is innocent misrepresentation?
a statement made where the representor:
a) Had reasonable grounds to believe truth and
b) Believed up to time of contract
What are the remedies for misrepresentation?
- rescission
- indemnity
- damages
Does misrepresentation make a contract void?
No, voidable
Is rescission always available for misrepresentation?
Court discretion
What are bars to rescission for misrepresentation?
- Affirmation
- Lapse of time
- Restitution is impossible
- Third party rights acrue
when is indemnity usually not given for misrepresentation?
Where damages available
How are damages for fraudulent misrepresentation calculated?
amount necessary to place injured party in position as if misrepresentation had not been made
