Vitiating Factors - Misrepresentation P3 Flashcards
What is a vitating factor
Something which makes a contract void or voidable. If a contract is void = no legal standing
What does void mean
A contract that is declared to have no legal effect
What does voidable mean
Contracts can be made voidable in certain circumstances - if right to make contract void is not excercised, it remains valid
What are the two vitiating factors
Misrepresentation and Economic duress
What is the definition of misrepresentation
An untrue statement of fact made by another to contract another
It must have ainducing effect
It cannot be a statement of opinion
What is the case for a misrepresentation cannot be a statement of opinion
Dimmock V Hallet (1866)
Bisset v Wilkinson
What is the case for misrepresentation is an untrue statement of fact
Spice Girls Ltd V Aprilia (2000)
What doe ‘It must have an inducing affect’ mean
It must lead the other party into making the contract where the statement in important to the person making the contract
They must have relied on statement made rather than own judgement or info obtainned elsewhere
Which case showed that relience on a TP no longer meaning you are relying on the party who made the misrepresentation and therefore cannot be sued - main case for inducing effect
Attwood V small (1838)
What is the general rule for misrepresentation
Misepresentation cannot be given by silence
Which case showed that a failure to disclose facts is not ususally misrepresentation due to caveat emptor
Fletcher V Krell (1873)
What are the 4 exceptions to the general rule that misrepresentation cannot be given in silence
Deliberate concealment
Half truths
Change in circumstance
Uberrima Fides
Which case showed that silence as a mean for deliberate concealment of defects is misrepresentation
Schneider V Heath (1813)
Which case showed that where a statement has rendered false by change in circumstance there is a duty to disclose the change - failure = misrepresentation
With V O’Flanagan (1936)
Which case showed that non-disclosure, may be misrepresntation as the marker of statement has a duty to reveal the whole truth
Dimmock V Hallet (1866)
What did Lambert V Coorperative insurance show
The contract had been taken out in utmost good faith - Uberrima Fide
Misrepresentation can be done..
Through conduct
Which case showed misrepresentation can be done through conduct and shows an untrue statement of fact
Spice Girls Ltd V Aprilia (2000)
What are the three types of misreprensation
Fraudulent
Neglient
Innocent
What is Fraudulent misrepresentation
where the represent has intentionally lied about a fact or been reckless as to the truth - Derry V Peek (1889)
What are the remedies for Fraudulent misrepresentation
Recission: Based on equity - a rewind remedy
Puts c back in the position they were before the misrep
Damages: Calulated as per the tort of deceit - generously
Includes all loses flowing from the misrep (Smith New court V Scrimgeour Vikers)
(CAN HAVE BOTH)
What did Smith New Court Securities V Scrimgeour Vickers show
Damages under the tort of deceit can include all the losses flowing naturally from the original fraud
what is Negligent Misrepresentation
The representor has been careless and in breach in whether a statement is true or not
What are the two courses of action for negligent misrepresentation
Common law
Statute
