Vitiating factors

Question 1

What are vitiating factors?

Answer 1

Can make the contract void or voidable, as if it never existed or where the consumer can choose to continue or claim remedies

Question 2

What is misrepresentation?

Answer 2

When a party has made an untrue statement during negotiations, which the other party has relied on and was induced by it

Question 3

What are the four stages of misrepresentation?

Answer 3

-Untrue statement of fact (nature)
-That induced the other party
-Type of misrepresentation
-Remedies

Question 4

What are the side rules to the nature of misrep?

Answer 4

-Opinion/Advertising puff
-No intention of acting
-Misrep by actions/conduct
-Silence
-> part truth, change of circumstances, utmost good faith and trust relationship all under silence

Question 5

What is the rule on opinion/advertising puff for misrep? name the key case

Answer 5

Cannot be a misrep (Bissett v Wilkinson)

Question 6

What is the rule on having no intention or acting in misrep? name the key case

Answer 6

Untrue statement, is a misrep (Edgington v Fitzmaurice)

Question 7

What is the rule on misrep by actions/conduct? name the key case

Answer 7

Does not need to be written or verbal, still a misrep (Spice Girls Ltd v Aprilia World)

Question 8

What is the rule on silence in misrep? name the key case

Answer 8

Cannot be a misrep, no obligation to say anything but it must be verbal if so (Fletcher v Krell)

Question 9

What is the rule on part truth in misrep? name the key case

Answer 9

Exception to silence - can be a misrep (Dimmock v Hallett)

Question 10

What is the rule on change in circumstances in misrep? name the key case

Answer 10

Exception to silence - can become misrep if it becomes false before contract is made, info must be corrected (With v O’Flanagan)

Question 11

What is the rule on utmost good faith in misrep? name the key case

Answer 11

Exception to silence - can be a misrep if not all material facts are disclosed (Lambert v Co-Operation Insurance)

Question 12

What is the rule on relationships based on trust in misrep?

Answer 12

Exception to silence - more likely to be a misrep (Tate v Williamson)

Question 13

What is stage two of misrep? name the key case

Answer 13

Must induce the party to enter the contract, more likely to be a misrep if they are a trader/expert (Attwood v Small) - false statement must be critical part of decision

Question 14

What is stage three of misrep? name the key case

Answer 14

Types of misrep:
-Fraudulent (Derry v Peek)
-Negligent
-Innocent

Question 15

What is fraudulent misrep? name the key case

Answer 15

Either you know the statement to be false or you are reckless as to whether or not it is true (Derry v Peek)

Question 16

What is negligent misrep? name the key act

Answer 16

False statement with no reasonable grounds for believing it is true, careless. S2(1) Misrepresentation Act 1967 held the burden of proof is on the person making the statement that there were reasonable grounds

Question 17

What is innocent misrep? name the key act

Answer 17

Mistepresentation Act 1967 - genuinely held on reasonable grounds, false statement is made honestly

Question 18

What are the remedies for innocent misrep compared to fraudulent/negligent?

Answer 18

Only recission, however the court has the discretion to award damages from S2(2) if equitable - compared to both recission and damages for other two

Question 19

What are the remedies for misrep?

Answer 19

Recission - parties returned to pre-contractual positions, only granted if fair and not impossible to return
Damages - all actual damage or loss is claimable