misrepresentation

Question 1

what is misrepresentation

Answer 1

false statement of fact by which representer induces represented to enter the contract
- makes the contract voidable

Question 2

is a puffery a misrep actionable

Answer 2

no - cannot be verified objectively
- gimmick v wallet

Question 3

can statements of opinion be actionable

Answer 3

not normally actionable. as long as they appear to be nothing more than an opinion-
- bisset v wilkinson

exception
- an apparent statement of opinion or belief can imply that the person making the statement has a factual basis for that opinion or belief.
- boundary between fact and opinion may depend Jon balance of knowledge between parties eg an expert
- smith v land and house property

Question 4

can statements of future intention be actionable

Answer 4

generally not because it is not an existing fact.
- intrepreneur Pub v Sweeney
if the statement was fraudulent, then the representer has made a misrep to their state of mind which is an existing fact and therefore actionable

Question 5

is failure to reveal facts a misrepresentation

Answer 5

general rule- no obligation to reveal facts- Keats v Earl of Cadogan

Question 6

what happens if a statement becomes false between the time it was negotiated and made.

Answer 6

must give notice of a change in statement or it might result in an actionable misrep.-
- With v O’Flanagan

Question 7

what are the exceptions to the general rule on. failure to reveal facts

Answer 7

1. conduct- Spice girls v Aprilia world service - conduct can indicate certain impression which if it is failure is a misrep.
2. defects being deliberatly hidden.- Schneider v Heath.
3. half true statments- dimmock v hallett

Question 8

what is the difference between a half true statement and a changed circumstance situ

Answer 8

both true when made, half true is concealed facts and changed situ becomes untrue

Question 9

what special contacts require a duty to reveal info

Answer 9

• insurance contracts
• fiduciary relationships (solicitor and client)

Question 10

what is the requirement of inducement for a false representation to be actionable

Answer 10

the representer must have been induced.
1. statement does not have to be the only reason for entering the contract
2. fraudulent misrep- must have been ‘materially influenced’ by the statement
3. non-fraudulent misrep- but for test

Question 11

if a statement isn’t believed to be true, is it capable of being an inducement.

Answer 11

Hayward v Zurich insurance company.
- it might be possible,
if the statement is verified by an expert or a 3rd party, inducement is far less likely
- even if they are given the opportunity to verify but doesn’t take it, statement can still be inducement

Question 12

what is the effect of a misrep

Answer 12

it makes the contract voidable, continues in effect until the representer elects to affirm or rescind the contract.

Question 13

what is rescission

Answer 13

the basic remedy following an actionable breach. - means restoring the pre-contract position, putting parties back to where they would have been if he contract had not been entered into to.

Question 14

how can a contract be rescinded

Answer 14

1. innocent party must communicate an intention to rescind.- give notice

Question 15

what are the bars to rescission.

Answer 15

1. affirmation- when the innocent party shows intention to carry on
2. lapse of time- the innocent party takes too long to rescind
3. impossibility of restitution- not possible to restore the parties to their original position
4. supervening third party rights - when the rights of an innocent 3rd party prevent rescission

Question 16

long v Lloyd

Answer 16

authority of affirmation being a bar to rescission

Question 17

what is the rule for lapse of time

Answer 17

• fraud misrep- time at which the fraud is discovered. lapse of time can evidence them affirming contract
• negligent misrep- time at which misrep Is discovered
• innocent misrep- time at which the contract comes into effect

Question 18

if the bars to rescission do apply, is this final

Answer 18

no the courts might find power to refuse it.
misrepresentation act 1967.

Question 19

what is a fraudulent misrepresentation and the damages available

Answer 19

TORT OF DECEIT
DERRY V PEEK
- where there has been a false representation made, knowingly, recklessly or carelessly whether it be true or false.
damages available
-Doyle v Olby
- all direct loss irrespective of foreseeability
- contributory negligence reduction doesn’t not apply

Question 20

what is the negligence and what damages are available

Answer 20

TORT OF NEGLIGENCE
reliance loss based on the contract not having bee made.
- reasonably foreseeable loss
- contributory negligence does apply

Question 21

what is innocent misrep and what damages are available?

Answer 21

expectation measure- as if the statement had been true
- likely to Best wishes reasonably foreseeable loss.
contributory negligence reduction does apply

Question 22

what is the contributory negligence reduction

Question 23

what is s.2(1) of the misrep act 1967 and what damages are available

Answer 23

the act introduced its own version of negligent misrep that applies between parties that have a contract
- liable for damages if the representor cannot disprove negligence by showing he or she had reasonable grounds for making the statement
- based on the contract not having been made
- all direct loss irrespective of forseeability
- contributory negligence does apply