Misrepresentation Flashcards
What is actionable misrepresentation?
An untrue statement of fact which induces a person to enter a contract
A party may be able to have a contract set aside…
If there has been misrepresentation and the innocent party has entered into the contract on reliance of an untrue statement made by the other party to the contract
Misrepresentation is NOT…
- Opinion
- Forecasts
- Trading puffery
- Silence or non disclosure
Why can an opinion which is genuinely believed by the party making it not be misrepresented?
It must be an uninformed opinion (Bisset v Wilkinson)
A statement must not…
Contradict other facts known by the party giving the opinion (Smith vs LHPC)
Is a statement of future intention a statement of fact?
No
Does exaggerated advertising or vague boasts constitute statement of fact?
No
What are exceptions to the non silence rule?
- Representations by conduct
- Deliberately concealing defects in goods
- Half truths
What’s the rule about inducements?
The statement of fact must induce a party to enter the contract
What are some challenged to proving inducement?
- Where there is more than one inducement
- Where the representee:
- Has the opportunity to discover the truth but fails to take it
- Tests the accuracy but fails to discover the truth
- Asks a third party to test accuracy of statement but fails to discover the truth
A misrepresentation is actionable:
If it is fraudulent
What are some remedies for misrepresentation
- Remedy of rescission (back where they were
- Damages payments
How could you lose the right to rescind?
- Innocent party carries on using the goods/service
- Goods have already been consumed
- Lapse of time
What are the categories of misrepresentation?
- Fraudulent misrepresentations
- Common law negligent mis-statements
- Negligent misrepresentations under misrepresentation act 1967
- Wholly innocent misrepresentations
What is a common law negligent mis-statement?
False statement made with no reasonable grounds for believing it to be true
