Misrepresentation Flashcards
Dimmock v Hallett
Mere puff will not found an action in misrepresentation
Land described as ‘fertile and improvable’ - mere puff
Half-truths amount to misrepresentation
McInerny v Lloyd’s Bank
Statement has to be unambiguous - representor not liable for claimant placing unreasonable construction upon representation
Avon Insurance v Swire Fraser
A statement will not be false if it is ‘substantially correct’
Kleinwort Benson v Malaysia Mining Corp
Must be a statement of fact - asserts a given state of affairs (e.g. creditworthiness of parent company at the time of writing the comfort letter)
Pankhania v Hackney LBC
Statement of law is statement of fact
Gordon v Selico
Attempts at concealment capable of being misrepresentation
Bisset v Wilkinson
Layman’s opinion is not fact
Smith v Land & House Property Corporation
Opinion with greater knowledge may be fact - ‘he impliedly states he knows facts which justify his opinion’
Esso v Marden
Expert opinion may be fact
Beattie v Ebury
Future intention is not fact
Wales v Wadham
Statement of future intention is not fact - under no obligation to inform other party of later change of mind
Edgington v Fitzmaurice
Statement of false intention is fact
Misrepresentation need not be the only inducement into the contract
Keats v Earl of Cadogan
Silence is not fact
With v O’Flanagan
Silence amounting to a continuing representation that becomes false by the time of contracting is a statement of fact
Commercial Banking Co of Sydney v RH Brown
Statement must be addressed to claimant or made clear that it will be received by the claimant
Pan Atlantic v Pine Top Insurance
Does statement relate to issue that would materially influence the reasonable man entering into this type of contract?
Smith v Chadwick
If statement is material, inducement is presumed
No inducement if claimant did not rely on misrepresentation
Musprime v Adhill Properties
Claimant or defendant can prove claimant was/was not subjectively induced - although a reasonable person would/would not have been induced into the contract, the particular claimant was/was not
JEB Fasteners v Mark Bloom
Misrepresentation must have played a real and substantial part in inducing the contract
Horsfall v Thomas
No inducement where claimant was not aware of misrepresentation
Redgrave v Hurd
No general duty to check a statement’s truth
Smith v Eric Bush
If the party is commercial, the courts will deem it more reasonable to check the truth of the statement
Attwood v Small
No inducement if claimant relied on their own investigation
S Pearson v Dublin Corporation
If misrepresentation is fraudulent, any investigation carried out by misrepresentee will be discounted by he courts (OBITER)
Derry v Peek
Fraudulent misrepresentation is:
1) Knowing it’s untrue
2) Without belief in its truth
3) Reckless as to its truth
Thomas Witter v TBP Industries
Recklessness is a flagrant disregard for the truth - defendant has shut his eyes to the facts or purposely abstained from inquiring into them
Doyle v Olby Ironmongers
All losses flowing from entire transaction are recoverable under fraudulent misrepresentation as long as not too remote
Smith New Court v Scrimgeour Vickers
Confirms Doyle - must mitigate, damages reduced by any benefit accruing to the claimant as a result of the misrepresentation
East v Maurer
Can claim for tortious loss of profit in fraudulent misrepresentation - what would the claimant have made had they entered into a similar contract elsewhere?
Clef Aquitaine v Laporte
If claimant can prove that a definite contract that was going to happen was lost because of the misrepresentation, prospective loss for that specific profit can be claimed
Standard Chartered Banking v Pakistan National Shipping
Defence of contributory negligence does not apply
Howard Marine v Ogden
Fiction of fraud - if found liable for negligent misrepresentation, the defendant is treated as if liable for fraudulent misrepresentation
William Sindall v Cambridgeshire CC
Courts unlikely to grant rescission where misrepresentation is trivial and rescission would have serious and disproportionate consequences for misrepresentor
Car & Universal Finance v Caldwell
Claimant must intimate to the world at large that he intends to rescind the contract
Phillips v Brooks
Third party rights - cannot rescind contract if part of subject matter has been sold on
Long v Lloyd
Affirmation - cannot rescind if the claimant has acted as though they intend to continue with the contract
Clarke v Dickson
Impossibility - cannot rescind if the subject matter has changed irrevocably
Leaf v International Galleries
Lapse of time - delay will defeat rescission
Whittington v Seale-Hayne
Indemnity may be awarded to cover expenses for legal obligations assumed as a direct result of contract
Most likely in cases of innocent misrepresentation where no damages are available
Hedley Byrne v Heller
Negligent misstatement - reliance, special relationship, assumption of responsibility
Wagon Mound
Negligent misstatement damages - all losses reasonably foreseeable
Cremdean v Nash
General rule - cannot exclude liability for misrepresentation
Lewis v Avery
Rebuttable presumption that in face-to-face dealings the seller intends to contract with the person in front of them - and false statements about identity are actionable under misrepresentation
Shogun Finance v Hudson
Rebuttable presumption that in distance selling the seller contracts with the person represented, so false statements about identity are actionable under mistake and the contract is void ab initio
