5407613
Description
Flashcards by El-Ruth Harmony, updated more than 1 year ago
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Created by El-Ruth Harmony
over 8 years ago
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| Question | Answer |
| Define misrepresentation | - An unambiguous statement of material fact - Made prior to the contract - Addressed to the party misled - Which induces the party to enter into the contract |
| What four statements are usually not treated as statements of material facts? | - Opinion - Mere Sales Talk - Statements of future intent -Statements of law |
| Bissett v Wilkinson | - A statement of opinion is not a misrepresentation as to fact - The representer had no knowledge of sheep |
| What case gives an exception to the rule in Bissett v Wilkinson? | - Smith v Land and House Property Corp |
| Dimmock v Hallett | - Mere 'sales talk' is not considered as a statement of fact - Describing the land as 'fertile' was not representation but merely just sales talk |
| Smith v Land & House Property Corp | - Special knowledge and skill gives weight to an opinion - Saying Mr. F was a 'most desirable tenant' was a misrepresentation. |
| Edgington v Fitzmaurice | - A statement as to future intent can not amount to a misrep unless the representor had no intention of carrying out the stated intent. - The untrue statement as to future intention was a misrepresentation of fact. |
| What is the rule about statements of law? | A false statement of law cannot amount to a misrep because of the presumption that everyone knows the law. However, the distinction between fact & law is not always clear and sometimes a false statement of law can be a misrep. (Solle v Butcher) |
| What is the rule about when circumstances change? | Where the statement was true when made, but became false by the time that the contract was formed, the person who knows that it is false must disclose the change of circumstances. |
| Which case discusses changes in circumstances? | With v O'Flanagan |
| What is the rule about silence? | Silence cannot amount to misrepresentation. |
| What are the four exceptions to the general rule of silence? | There is a duty to disclose all material facts in: 1. Contracts of utmost good faith 2. where there has been a change in circumstances 3. half- truths 4. where there is a fiduciary relationship |
| With v O'Flanangan | - The worth of the medical practise had dropped during the time of negotiations but was true at the beginning o negotiations - The seller should have disclosed this information |
| What are four examples of contracts of good faith? | - Contracts of insurance - Contracts involving family arrangements (divorce, dividing property, etc) - Contracts for the sale of land Contracts for the sale of shares |
| What is the rule regarding half-truths? | Where a statement does not represent the whole truth, then this may be regarded as a misrepresentation |
| What case involves the use of half-truths? | Notts Patent Brick and Tile Co v Butler |
| What are four examples of fiduciary relationships? | - agent-principal - solicitor-client - partners in a partnership - doctor-patient |
| Notts Patent Brick and Tile Co v Butler | - Solicitor said 'not that I am aware of' when asked if there was any restrictions on the land - Half-truth which amounted to a misrepresentation |
| What cases shows that misrepresentation can be made by conduct rather than oral or written? | Spice Girls v Aprilia World Service BV - Participation of all 5 members induced Aprilia into entering into the contract |
| What is the two general rules about inducement? | - The claimant must have known about the existence on the statement - The statement must have materially affected the claimant's judgement (induced, relied or acted upon) |
| What case stated that misrepresentation must be made to the party misled? | Peek v Gurney (shares) |
| Horsefall v Thomas | The claimant purchased a gun which had a concealed defect. His action for misrepresentation failed as he had not inspected the gun before purchasing it. Therefore the misrepresentation did not induce him to enter the contract as he was unaware of it. |
| Which case shows the reliance rule in action? | Attwood v Small |
| Attwood v Small | By the claimant getting his own experts to check out the reports he had not relied on the accounts but his own judgment. |
| What case shows that the party does not have to verify the truth of the representation? | Redgrave v Hurd |
| Redgrave v Hurd | If the representee is given the opportunity to check out the statement but does not in fact check it out, they are still able to demonstrate reliance |
| What are the three types of misrepresentation? | - Innocent - Negligent - Fraudulent |
| Which case defined fraudulent misrepresentation? | Derry v Peek |
| What did the judge say in Derry v Peek? | Lord Herschell defined fraudulent as a statement which is made either: - knowing it to be false, - without belief in its truth, or - recklessly, careless as to whether it be true or false The burden of proof lies on the claimant |
| What are is the remedy for negligent misrepresentation at common law? | Damages |
| Which case discusses negligent misinterpretation? | Hedley Bryne v Heller |
| What are the three situations where liability for negligent misrepresentation will arise? | - the defendant carelessly makes a false statement to the claimant - there is a special relationship between the parties - it is reasonable to assume that the statement will be relied upon |
| Which types of misrepresentations can the remedies of recession and damages be used? | - Negligent - Fruadulent |
| What are the five bars to rescission? | - Affirmation - Lapse of time - Rights of third parties - Impossible to restore parties to their pre-contractual positions - Damages in lieu of rescission is a better remedy |
| What is affirmation? | Where the representee does an act to adopt the contract or demonstrates a willingness to continue with the contract after becoming aware if the misrepresentation. |
| Which case shows affirmation being used? | Long v Llyod |
| What is lapse of time? | The right to rescind will be lost after a lapse of time? |
| Which case shows the rule of lapse of time being used? | Leaf v International Galleries |
| What does restitution in integrum impossible mean? | Where it is impossible to restore the parties to their pre-contractual position, eg where the goods have perished or have been consumed, the right to rescind will be lost. |
| Who does the burden of proof rely on in fraudulent misrepresentation? | The claimant must prove that there was a misrepresentation and that the defendant was fraudulant |
| What does fraudulent representation mean? | "Made knowingly or without belief in the truth" (Derry v Peek) - Tort of deceit |
| What levels of proof does there need to be for fraud and what amount of remedies is given? | - High level of proof because of the consequences - They are rarely successful - The most generous amount of remedies |
| What is negligent misrepresentation? | Where the statement maker believes the statement is true but does not have reasonable grounds for reaching that conclusion |
| Who does the burden of proof rely on for negligent misrepresentation? | - The claimant must prove the existence of misrepresentation - Then the burden of proof shift to the defendant |
| What is the differences for fraud in burdens of proof at common law and under s.2(1)? | - At common law claimants must prove misrepresentation and that the defendant was fraudulent |
| What is the differences for negligence in burdens of proof at common law and under s.2(1) | - At common law claimant must prove existence of duty of care AND that it was breached. - At statute, claimant must only prove misrepresentation |
| What has the defendant got to do to escape liability for negligence under statute? | - Must prove that he had reasonable grounds to believe that it was true |
| What is innocent misrepresentation? | Where the person making the statement honestly believed it to be true and held reasonable grounds to do so. |
| If you are a victim of fraudulent misrepresentation what are you entitled to? | - Rescission AND - Damages (all direct loss) |
| If you are a victim of negligent misrepresentation (under statute) what are you entitled to? | - Rescission AND - Damages (all direct loss) |
| If you are a victim of negligent misrepresentation (under common law) what are you entitled to? | - Rescission AND - Damages (reasonably foreseeable loss) |
| If you are a victim of innocent misrepresentation what are you entitled to? | - Rescission (and possibly indemnity) OR - Damages (at the discretion of the court) (no clear guidance) |
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