Misrepresentation

Question 1

What is misrep in contracts?

Answer 1

A false statement in order to coax someone into entering into a contract.

Silence not usually misrep

Implied misrep/half truths can be

Question 2

What are continuing representations?

Answer 2

If facts change prior to entering contract you must inform other parties.

Question 3

In what other case can a statement not be treated as misrep?

Answer 3

If the statement cannot/should not be relied upon (ie inexperienced in that field)

Bisset v Wilkinson (sheep 200 land)

Question 4

Describe statements of intention in relation to misrep in contracts

Answer 4

Statement as to what will happen in the future.

Only a misrep if you dont have the intention to do what you say, ie Edginton v Fitzmaurice

Question 5

Can misrep be communicated by a 3rd party and if so which case supports this?

Answer 5

Yes, Cramasi v Ogilure-Grant

Question 6

What else must be true about the statement?

Answer 6

Must induce them to enter into contract, no misrep if they were going to enter anyway

Question 7

What is fraudulent misrep and what are the remedies?

Answer 7

False rep was made knowingly.

Rescission or damages in tort of deciet

Question 8

What is innocent misrep and what are the damages?

Answer 8

Did not mean to decieve and is not negligent.

Rescission, damages at court’s discression

Question 9

What is negligent misrep?

Answer 9

Makes statement which he believes to be true but had no grounds to believe so

Rescission and damages

Question 10

What is rescission?

Answer 10

Contract treated as valid up to

the point court decides, parties are out back to where they were prior to the contract.

Question 11

What are the various bars to rescission?

Answer 11

Excessive lapse of time
Impossibility
If rights have been sold onto a third party
If victim affirms the contract

Question 12

What can you claim for in fraudulent misrep cases?

Answer 12

All losses stemming from entering into the contract, not just reasonably foreseeable ones

Question 13

What are the damages for neg misrep?

Answer 13

Measure of damages in the same as fraudulent misrep

Question 14

What is duress?

Answer 14

Improper threats brought to bear on one party by the other to coerce them into entering a contract

Question 15

What is the remedy for duress?

Answer 15

Contract is voidable at the choice of the victim, who can also affirm the contract

Question 16

Name 3 types of duress?

Answer 16

Physical duress
Duress vs goods
Economic duress

Question 17

Define economic duress and provide the main case

Answer 17

A party threatens to break contract in order to get them to enter into new contract for more money

Atlas express v kafco (woolworths one)

Question 18

What two things fo you need to show in order to prove economic duress?

Answer 18

Illegitimate pressure or threat

This caused them to enter into the contract

Question 19

What is the criteria for illegitimate pressure?

Answer 19

DSDN Subsea v petrol geo services

Actual threat of breach
Was it in bad faith
Any alternatives?
Did victim protest
Did v seek to rely on contract

Question 20

What is undue influence?

Answer 20

Influence which induced a party to enter a contract.

Question 21

What are the three types of undue influence?

Answer 21

Actual UI
Presumed UI- ie based on the parties’ relationship and the nature if the transaction.
3rd party UI

Question 22

What must there be for presumed UI to be proven?

Answer 22

Relationship of trust and confidence

Transaction cals for an explanation