Representations and Terms Flashcards
Pre-contractual statements - Oral or written
Term of the contract - remedy for breach of comtract if breached
Mere puff - Boastful advertising statements made with no intention of binding effect
Representation - remedy in misrepresentation if false
Terms v Representations Guidelines
- Strength of statement/assumption of risk
- Importance of statement to representee
- Specialist knowledge
- Timing of statement
- Reduction into writing
Strength of statement / assumption of risk - 1
Is the statement clear? and has the person who has made the statement agreeing to be bound by it
Schawel v Reade [1913] 2 IR 81
P purchased horse from D for stud purposes and D told him horse was ‘sound’ and if there was anything wrong with it he would tell him
HOWEVER the horse turned out to have an eye disease and couldn’t be used as a stud –> SO it was held that D had assured P and was aware of purpose horse to be used, hence breach of a contractual term
Ecay v Godfrey [1947] 80 Lloyds Rep 286
D sold boat to P and D told P the boat was ‘free from vice’ but advised him to have it surveyed
Boat was defective; no breach of contract – D did not wish P to rely on the statement
Importance to representee - 2
Bannerman v White (1861) 142 ER 685
Contract for sale of hops
> Purchaser asked buyer if sulphur had been used in growth or treatment, and added he ‘would not ask the price’ if sulphur had been used
> Seller asserted no sulphur had been used; it emerged this was false
> Held to be a breach of contract – the purchaser had insisted that sulphur should not have been used
> Purchaser made it clear he didn’t want the hops if they had sulfur therefore the buyer accepted liability as he said they hadn’t been treated with sulfur
The existence of specialist knowledge - 3
Oscar Chess Ltd v Williams [1957] 1 WLR 470
> P car dealership bought a car from D in part-exchange deal
Salesman at car dealership was D’s neighbour and thought the car was 1948 Morris
D believed the car was 1948 Morris and it had been bought on that basis initially
Car first registered in 1948
Subsequently emerged after sale that car was 1939 model
No breach of contract – an innocent misrepresentation
Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623
> Smith, a motor dealer, bought a Bentley to sell to DB
> Smith told Bentley the car had undergone engine and gearbox replacement and done 20,000 miles since then
> Speedometer showed 20,000 miles BUT was later found to be untrue
> Breach of contract – because Smith had made a statement of expertise by saying it had done no more than 20,000 miles since engine/gear box replacement and was thus assuming responsibility
Timing of the statement - 4
Routledge v McKay [1954] 1 WLR 615
P sued D after buying a 1930 model motorbike which had a registration book stating it was a 1941 model
D had bought bike from 3rd party
3rd party had bought it from a 4th party
4th party had bought it from a 5th party
5th party was barred from bringing in 6th party due to legislation on limitations
Some remote seller had clearly falsified the registration book but none of the subsequent sellers were the originators hence no breach of contract (innocent misrepresentation)
Reduction to writing / signature - 5
L’Estrange v Graucob [1934] 2 KB 394
L’Estrange owned café and ordered cigarette machine from manufacturers
Contract contained a clause to the effect that no statutory implied condition or statement was included
L’Estrange claimed machine was unfit for purpose – breach of implied term under Sale of Goods Act 1893
She had signed the agreement and hence the clause was incorporated as a term irrespective of whether she had seen it or read it
