Vitating Elements In Formation Flashcards
What is a potential remedy for misrepresentation?
Rescission of the contract and damages
What is an actionable misrepresentation?
A false statement of fact or law which induced a party to enter into the contract
What can misrepresentations be?
Innocent
Negligent
Fraudulent
Silent to a change of circumstances regarding a statement made can be what?
Misrepresentation by silence
What are the categories if misrepresentation?
Fraudulent
Negligent at common law
Statutory misrepresentation
Innocent
Fraudulent misrepresentation
The maker if the statement knows it is untrue or doesn’t care
Negligent at common law
The two parties are in a special relationship. There is a duty to care. There is a breach if duty
Statutory misrepresentation
The maker of the statement has no reasonable grounds to believe it’s true
Innocent misrepresentation
The maker of the statement believes it to be true
What is rescission?
Where the contract is set aside. As if if never existed. Goods are returned
Limitations of rescission
Aware of the misrepresentation
Significant time lapse
Restitution is impossible
Affect the rights of a third party
What can the courts award in place of rescission?
Damages. Where it is equitable to do so
To obtain damages for a fraudulent misrepresentation what must the claimant prove?
The statement was made knowing it was untrue or
Without any genuine belief of truth or
Reckless disregard of truth
What was the expansion of duress?
From the personal security of a person to goods to economic duress
Does duress make a contract void or voidable?
Voidable. Consent is revocable
What does duress render a contract?
Voidable not void
What are the consequences of duress rendering a contract void?
The party must act promptly
A third party can acquire title to goods even though his vendor did so with a contract brought about by duress
What are the types of duress?
Duress to the person
Duress to goods
Economic duress
example of duress to goods
Threats to destroy goods or take away
How does economic duress take place?
When one party uses it’s superior economic power to the weaker party into an agreement
When does the doctrine of undue influence operate?
When the relationship means one relies upon the other
What is the criteria for proving actual undue influence?
They had the capacity to influence
They did influence
Exercise of this influence was undue
Because of this influence the transaction was brought about
An example of genuine presumptions in undue influence
Doctor patient
What are Evidential presumptions?
Where the complainant must prove there was undue influence as a result if a relationship
How can the burden if proof shift to the wrongdoer in evidential presumptions in undue influence?
They must prove that the complainant acted independently and understood their own actions
Example of undue influence involving third parties?
Spouses. Husband leading wife into contract with a bank
What are the two types if undue influence?
Actual
Presumed
