Sculpara Vs Eric Case Study
The agreement between SCULPTURa (S) and Eric (E) contains clear express terms: E is to supply a suitable piece of his land to accommodate S’s major art exhibition for a rental fee.
Contractual rights and obligations can either be written, oral or inferred by conduct. Since there was no formal contract drafted between S and E, written or signed by either party, this agreement is, therefore, an oral contract; legitimised by both a handshake and consideration in the form of payment.
The first issue for the courts is to determine whether E’s pre-contractual statement, his land is suitable for installing a marquee, is a legally enforceable pre-contractual term that could lead to a successful claim for breach for misrepresentation, …show more content…
Opinions are statements that are not based on fact and can, if determined to be such, result in no remedy if the opinion itself turns out to be false. This was established in Bisset v Wilkinson, whereby the claimant was unsuccessful after the court found the defendant’s statement, his land was suitable for two-thousand sheep, was a statement of opinion rather than fact and therefore, not an actionable misrepresentation.
However, there is an exception to this rule as established in Esso Petroleum Co. Ltd. v Marden. The courts may turn to this exception to determine if there is an actionable claim for misrepresentation. When someone ‘professes to have special knowledge or skill’ in the subject or area in dispute, they are then under a duty to use reasonable care to correctly represent information to the other party. If the ‘expert’ negligently gives false information with the goal to entice the other party to enter into a contract, it could give rise to liability for misrepresentation and ultimately, …show more content…
The facts are similar: the claimant (C) had communicated to the defendant (E), the importance of the land being suitable. The C then relied on that information and entered a contract. However, would not have if the land was not suitable. Suitability for marquee installation is a fundamental term of the contract, and without it, there is no motive to contract.
In this case, it was held that because the claimant had communicated to the defendant the importance of the term; hops must have been treated without sulphur, and because the claimant relied on the statement, the hops had not been treated with sulphur, the claimant’s action for breach of a fundamental term was successful.
The strength of the defendant’s assurance in Bannerman is analogous to E’s assurance. Using this line of reasoning, S would have an arguable claim that E’s statement and assurance, does, in fact, form a fundamental term and should warrant a breach whereby repudiation and damages are available.
Regarding the extra money C paid to have the marquee installed, it may be advisable to C to ask the courts to imply a term in fact into the contract that was not expressly stated. That is, who should pay for extra costs if the land is not