Vitiating factors- misrepresentation

Question 1

Define misrepresentation

Answer 1

A false statement made during the formation of a contract that induces a party to enter the contract

Question 2

What are the 4 criteria for a misrepresentation

Answer 2

• wrongful party made false statement
• statement must relayed to material facts of contract
• statement must be made by party to contract
• statement must induce party to enter contract

Question 3

Explain the 1st criteria of misrepresentation (wrongful party made false statement)

Answer 3

Can be verbal written or by conduct
Misrepresentation cant be made by silence
Misrepresentation must be ongoing and become false
Non disclosure of whole truth can be a misrepresentation when there’s a position of trust
Half truth is a misrepresentation

Question 4

Whats the case for position of trust

Answer 4

Tate v Williamson

Question 5

What’s the case for misrep must be ongoing and become false

Answer 5

With v Flanagan

Question 6

Whats the case for silence cant amount to a misrep

Answer 6

Spice girls v Aprilia

Question 7

Whats the case for half truth

Answer 7

Dimmock v hallett

Question 8

Explain the 2nd criteria of misrepresentation (statement must relate to material facts of contract)

Answer 8

Statement of opinion/marketing gimmick/ statement of future intention= not statement of material fact

Question 9

Whats the case for the 2nd criteria of misrep (statement must relate to material facts of contract)

Answer 9

Bissett v Wilkinson

Question 10

Explain the 3rd criteria of misrep (statement must be made by party to contract)

Answer 10

3rd party inducing party to enter contract doesn’t make the original party accountable

Question 11

Give an example for the 3rd criteria of misrep (statement must be made by party to contract)

Answer 11

Magazine presenting false info about product, individual purchase product, no claims can be made against the company of the product

Question 12

Explain the 4th criteria of misrep (statement must induce party to enter contract)

Answer 12

If misrep is affirmed by 3rd independent party, the fact that c sought confirmation suggests the misrep didn’t induce the contract

Question 13

What cases says that if confirmation is sought out, it means the party hasn’t been induced

Answer 13

Atwood v small

Question 14

Redgrave v Hurd (statement must induce party to enter contract)

Answer 14

Not matter that c could have sought info that proved representation was false

Question 15

What are the 3 types of misrepresentation

Answer 15

Innocent misrep
Negligent misrep
Fraudulent misrep

Question 16

What is innocent misrepresentation

Answer 16

Where the party believes the info they have given to be true

Question 17

What are the 4 things that make rescission unavailable in innocent misrepresentations

Answer 17

Return to original pre-contractural position not possible
Contract was affirmed
Delay
3rd party gained right over property

Question 18

Explain what is meant by return to pre contractural position not possible

Answer 18

Party destroyed/disposed of property

Question 19

Explain what is meant by contract affirmed, include a case

Answer 19

Suffering party continues with contract after becoming aware of the misrep (long v Lloyd)

Question 20

Explain what is meant by delay, include a case

Answer 20

Delay between the contract and the complain may mean that party losses right to rescind contract (leaf v international galleries)

Question 21

Explain what is meant by 3rd party gained right over property, include a case

Answer 21

Goods cant be returned to original party as it would be unfair on innocent 3rd party (Lewis v avery)

Question 22

What are the remedies for innocent misrepresentation

Answer 22

Rescission- treat contract as if it hadn’t happened, return c to position before contract

Question 23

What is negligent misrepresentation

Answer 23

Where the party has no reasonable grounds to believe statement they gave to be true, but the misrep wasn’t deliberate

Question 24

For negligent misrep, what are the 2 places the c can make a claim under

Answer 24

Law of contract (s2(1) misrep act)
Law of negligence (hedley Byrne v heller)

Question 25

What must be proved in negligent misrepresentation

Answer 25

That the d was negligent in presenting the info, and that they had reasonable grounds in making the representation

Question 26

What case can be used for negligent misrepresentation

Answer 26

Ogden v Howard marine

Question 27

What are the remedies for negligent misrep

Answer 27

Rescission
Damages- where not fair to rescind

Question 28

What is fraudulent misrepresentation

Answer 28

Where the wrongful party make a statement knowing it to be untrue or are reckless as to whether its untrue

Question 29

What case can be used for fraudulent misrep

Answer 29

Hurst v hone

Question 30

What are the remedies for fraudulent misrepresentation

Answer 30

Rescission
Damages