Vitiating factors - misrepresentation

Question 1

Element 1

Answer 1

Must be a false statement

Question 2

False statement doesn’t need to be written or verbal it can be a picture

Answer 2

Spice girls v Aprilia

Question 3

Spice girls v Aprilia world service

Answer 3

Appearance in photographs were together even though they knew a member was leaving the group. This was a misrepresentation as it was a false statement.

Question 4

Silence can not be a false statement

Answer 4

Fletcher v Krell

Question 5

Fletcher v Krell

Answer 5

Silence was not a false statement so this was not a misrepresentation

Question 6

Exceptions to the silence rule

Answer 6

1. Where circumstances change - keeping silent can be a misrepresentation
2. A half truth - being economical with the truth
3. Relationship between parties is based on trust
4. In Uberrimae Fidei contracts

Question 7

Where circumstances change

Answer 7

With v O’Flannagan

Question 8

With v O’Flannagan

Answer 8

Should’ve told the purchaser of the change of situation

Question 9

A half truth

Answer 9

Dimmock v Hallet

Question 10

Dimmock v Hallet

Answer 10

A part truth about tenants on a land was a misrepresentation

Question 11

Parties are in a position of trust

Answer 11

Tate v Williamson

Question 12

Tate v Williamson

Answer 12

Breach of trust by a financial adviser was a misrepresentation

Question 13

Uberrimae fidei contracts

Answer 13

Lambert v Co-Operative Insurance

Question 14

Lambert v Co-operative Insurance

Answer 14

Silence about the criminal conviction of her husband was a misrepresentation. Company was entitled to make the policy void and refuse to pay claim.

Question 15

Element 2

Answer 15

Must be a statement of material fact

Question 16

Must be a statement of material fact

Answer 16

Bissett v Wilkinson

Question 17

Bissett v Wilkinson

Answer 17

Genuinely believed his opinion on sheep in the farm to be accurate, so it was not a misrepresentation.

Question 18

Element 3

Answer 18

It must have been made by someone, who was a party to the contract

Question 19

Element 4

Answer 19

It must have induced the other party to enter the contract

Question 20

Must have induced the other party to enter the contract

Answer 20

Attwood v Small

Question 21

Attwood v Small

Answer 21

No misrepresentation as the purchaser relied on the survey report and not the sellers statement

Question 22

The point can still be proved even if C could reasonably have checked to see if the statement was true

Answer 22

Redgrave v Hurd

Question 23

Redgrave v Hurd

Answer 23

Was entitled to rely on the sellers state more and because this was untrue, this was a misrepresentation

Question 24

Misrepresentation to consumers

Answer 24

Consumer Protection Regulations 2014

Question 25

Consumer Protection Regulations 2014

Answer 25

Information given to a consumer will be treated as a misleading omission:
- When it omits material information that the average consumer needs, according to the context, to make an informed, transactional decision.
- Hides or provides material. Information in an unfair, unintelligible, ambiguous and untimely manner.
- Fails to identify the commercial intent of the commercial practice if this is not already clear from the context.

Question 26

Types of misrepresenation

Answer 26

• Innocent misrepresentation
• Negligent misrepresentation
• Fraudulent misrepresentation

Named in Misrepresentation Act 1967

Question 27

Innocent misrepresentation

Answer 27

A representation which is genuinely held on reasonable grounds. This is a false statement made honestly and no element of negligence in that belief.
Remedies available is rescission or damages

Question 28

Negligent misrepresentation

Answer 28

False statement made by someone who believed the statement to be true but had no reasonable grounds to believe it to be true.
Howard Marine v Ogden
Remedies: Rescission AND/OR Damages

Question 29

Howard Marine v Ogden

Answer 29

Had no registration document of dredges so no reasonable to believe the statement to be true

Question 30

Fraudulent misrepresentation

Answer 30

Person making the statement induces the contract by making a statement that they know is untrue, or is reckless at to whether or not it is true.
Greenridge v Kempton
Remedies: Rescission or damages, and in some circumstances damages in the tort of deceit may be appropriate

Question 31

Greenridge v Kempton

Answer 31

Untrue representation made recklessly or fraudulently by the seller so buyer was entitled to damages

Question 32

What is rescission?

Answer 32

Puts parties back into their original position

Question 33

Examples where courts will not use rescission

Answer 33

• Restitution to pre-contract is impossible
• Contract is affirmed
• Delay
• Third party has gained rights

Question 34

Restitution to pre-contract is impossible

Answer 34

Clarke v Dickinson

Question 35

Clarke v Dickinson

Answer 35

Rescission was not possible as they could not return the partnership

Question 36

Claimant has affirmed the contract

Answer 36

Long v Lloyd

Question 37

Long v Lloyd

Answer 37

Court refused because by persevering with the contract, indicated willingness to continue

Question 38

Delay

Answer 38

Leaf v International Galleries

Question 39

Leaf v International Galleries

Answer 39

Rescission was not allowed because of the 5 year delay in bringing the claim

Question 40

Third party has gained rights to the property

Answer 40

Lewis v Avery

Question 41

Lewis v Avery

Answer 41

Claim for rescission failed, would be unfair to deceptive third party of the purchased car.