Misrepresentation, Duress and Undue Influence Flashcards
What is the legal consequence of misrepresentation?
The contract will become void
What four terms have to be met in order to establish an actionable misrepresentation?
1) A false statement
2) Of existing or past fact
3) Made by one contracting party to the other;
4) That induces the other party to enter into the contract
What are the three types of misrepresentation?
1) Fraudulent
2) Negligent
3) Innocent
Does silence amount to misrepresentation?
Usually not however, if information is key it must be disclosed e.g contract between an insurance company and client
Is there a duty to disclose facts after they have changed?
Yes, there is a duty to keep representation ‘up to date’ and inform the purchaser of changes
- With v O’ Flanagan
In order to amount to misrepresentation, a statement must what?
-Be a statement of fact
-Mere opinions will not be reasonable for misrepresentation
-Bisset v Wilkinson
-Esso Petroleum Co Ltd v Mardon
Will someone’s statement of what is going to happen in the future a statement of fact?
-Generally no however, where the intention is not actually held when the statement is made so there is a deliberate lie
-Edgington v Fitzmaurice
-East v Maurer
Does a statement have to induce a party into the contract?
-Yes, if party was to enter anyways then it wouldn’t count
Does the false statement have to be the only reason why a party has entered into the contract?
-No
-Edgington v Fitzmaurice
What does checking out a sellers supposedly false statement do?
-It shows that the purchaser wasn’t relying on the false statement therefore, it would be hard to prove misrepresentation
What remedies can you receive for fraudulent misrepresentation?
-Rescission
-Damages
What remedies can you receive for negligent representation?
-Rescission
-Damages under a.2(1) of the misrepresentation act 1967
What remedies can you receive for innocent misrepresentation?
-Rescission
-Damages, court has discretion to award damages under misrepresentation act
How does rescission work?
Contract is unwound and parties are put into their pre contracting positions
In what circumstances will rescission not be awarded?
-Impossibility, to return parties to pre-contract position e.g goods consumed
-Third party rights, if property has been sold to third party
-Affirmation, done by victim
-Lapse of time
What damages can be awarded for fraudulent misrepresentation?
-Court awards damages to put other party back in their previous position
-Awards compensation for all direct consequences of entering into the contract
