Misrepresentation Flashcards
what is misrepresentation
a false statement of fact or law which induces the other party to enter the contract
what 5 things must there be for a misrepresentation
1) a false/ untrue statement
2) of material fact
3) made by a party to the contract to the other
4) the statement complained of must have been made before or at the time of the contract
5) the statement induces the other party to enter the contract
what case states that the statement is usually written/ verbal but can be anything that influences the other party’s decision e.g. actions/ conduct
Spice Girls Ltd. v Aprilia
what case states that silence cannot be a misrepresentation + PoL
Fletcher v Krell: no misrepresentation as applicant under no duty to disclose her status + she was not asked about it
what 4 situations must be considered (false/ untrue statement) - 4 cases
a) silence can be misrepresentation if statement made is a half truth - Dimmock v Hallett
b) if a statement made was true at time but becomes untrue/ in accurate before contract made, representor must clarify the change - With v O’Flanagan
c) if a relationship based on trust then silence may prove to be a misrepresentation - Tate v Williamson
d) if contract is one of ‘upmost good faith’ all material facts must be disclosed whether asked or not - Lambert v Cooperative Insurance Society
under 2) of material fact, what must the statement have led a person to do
make contract + influence the mind of them
in what case was the statement one of opinion + so could not be a misrepresentation
Bissett v Wilkinson
what case stated that a statement of intention to act in a particular way in the future may be a statement of fact if representor did not have that intention when making statement
Edington v Fitzmaurice
no misrepresentation when untrue statement is made by a third party, for example
newspaper review of an item cannot be a misrepresentation
what case stated that the statement complained of must have been made before/ at time of contact
Roscorla v Thomas
what case states that it is not enough for v to prove statement is untrue - the statement must be important to the making of the contract
Attwood v Small
it is not a defence for representor to claim…(2)
• v should have discovered truth by taking reasonable steps
• v was unreasonable for trying in the untrue statement
what case stated that the fact the untrue statement is relied on is not enough to make it a misrepresentation
Redgrave v Hurd
what 3 types of misrepresentation are there
1) fraudulent misrepresentation
2) innocent misrepresentation
3) negligent misrepresentation
what is fraudulent misrepresentation
representor intentionally lied about the fact/ been reckless as to it’s truth
in what case was the statement not a fraudulent misrepresentation as the directors were only careless as to whether what they said was true
Derry v Peek
what are the remedies for fraudulent misrepresentation
rescission and/ or damages
what is the aim of rescission
put C in pre-contractual position
what kind of remedy is rescission, and so what is it
equitable remedy so given at courts discretion
when is rescission not available (4)
- returning to pre-contractual position impossible
- contract is affirmed
- delay
- a 3rd party has gained right over the property
what is the aim of damages
to return innocent party to position they would have been in it misrepresentation + contract had never been made
what is innocent misrepresentation
clarified by Misrepresentation Act 1967 as when representor genuinely believes statement to be true + is not at fault
what remedies are available for innocent misrepresentation
rescission or damages
under innocent misrepresentation, does innocent party have right to damages + what will courts take into account
no but court has discretion to award them instead of rescission under s2(2) Misrepresentation Act 1967. will take into account:
• loss to innocent party
• hardship caused to representor if contract rescinded
