Law of Contract: Genuine Consent Essay

2562 Words Apr 2nd, 2011 11 Pages
Lecture 8

Law of Contract: Genuine Consent

INTRODUCTION

Although the contract may have the essentials of a valid offer, acceptance, legal intentions and consideration, its validity or enforceability may be affected by a number of factors. The agreement may be wanting in genuine consent between the parties. That is, although the parties may appear to have reached an agreement, it may not have been genuinely achieved because of misconduct, pressure, unfairness, or fear by those involved.

As separate issues to genuine consent, the law allows minors and others lacking legal capacity to be relieved of contractual obligations in certain circumstances; additionally, the validity of the contract is affected if the subject matter
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Statements which induce a contract but are not intended by the parties to become part of the contract are known as ‘non-contractual representations’ or ‘mere representations’.

For the purposes of this course, and to avoid possible confusion, we shall use the word ‘representation’ in the latter sense, namely those pre-contractual statements intended to induce a contract but which do not form a part of the contract. Hence, representations must be distinguished from statements that become part of the terms of a contract and will therefore give the innocent party a right to terminate and/or sue in the event of their breach. Representations must also be distinguished from the self evident exaggerations in sales talk and mere advertising “puff”, such as “the best little car in town.” In certain circumstances, a representation may amount to a misrepresentation, and allow the contract to be avoided by the party to whom it was made.

Definition
A misrepresentation is a pre-contractual (i.e. it is stated before the contract is made) false statement of fact made by one party which induces the other party to enter into the contract.

Rules as to misrepresentation

1) must be a false statement
The general rule is that silence cannot constitute a misrepresentation where there is no obligation to divulge information. However, if silence distorts an existing representation, then it may constitute misrepresentation. Hence, a misrepresentation will

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