Misrepresentation

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Misrepresentation

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false statement of fact made by one party to another party, which has the effect of inducing that party into the contract

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silence

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Fletcher v Krell

An applicant for a job as a governess failed to disclose the fact that she had previously been married and remained silent on the point. It was held that there was no misrepresentation.

Woman who applied for governess position did not reveal former marriage despite single women being preferred. No misrepresentation.

Hands v Simpson Fawcett

Commercial traveller did not inform employers he had been disqualified from driving, which was vital to job. No misrepresentation.

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exception to when silence can amount to misrepresentation

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Walters v Morgan

It has been said in a well known dictum that 'a nod or a wink or a shake or a smile' may amount to a representation if it is intended to induce the other party to believe in a certain state of facts. The defendant agreed to grant the plaintiff a mining lease over land he had just bought. Specific performance was refused as the plaintiff had produced a draft lease and induced the defendant to sign the agreement in ignorance of the value of the property. The plaintiff had hurried the defendant into signing the lease before he knew the value of the property.

R v Barnard

Deception offences include situations where the defendant represents that counterfeited goods are genuine items, or misrepresents their identity . where the defendant represented that he was a student to an Oxford bookshop to qualify for their scheme of discounting books to students.

Sykes v Taylor Rose

The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact. Held: The doctrine of caveat emptor still had application. As regards the replies to preliminary enquiries, the question asked was subjective and had to be answered honestly. The question was confined to information the purchaser might be entitled to know. The judge was not incorrect.

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obliged to disclose facts even if not asked if told a half truth

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Nottingham Patent Brick and Title Co v Butler

Tapp v Lee

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statement which is true them becomes untrue before contract is finally settled

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With v O'Flanagan

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When one person is in a much better position than the other to know certain material facts

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Lambert v Co-op

North Star shipping v Sphere Drake Insurance

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Non-disclosure due to conduct

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Spice girls v Aprilia World Service

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Misrepresentation are untrue statements of fact. The following are not statements of fact

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Statement of law (Solle v Butcher)

Statement of opinion (Bisset v Wilkinson, Smith v Land & House Property Cort)

Statement of future intention (unless you have no intention of doing it) (Edgington v Fitzmaurice

False Advertisement

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Untrue statement must be intended to induce and actually induce the person to whom it is made. No misrepresentation if:

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Plaintiff did not know about false statement/failed to read (Horsfall v Thomas)

False statement did not influence the other party to enter the contract (Smith v Chadwick)

False statement was not relied upon because the other party checked the facts himself. (Attwood v Small, Redgrave v Hurd)

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Remedies

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Under Misrepresentation Act 1967, remedies are damages and/or rescission to place innocent party into the position had there been no misrepresentation. Rescission cancels the contract and the goods and monies are returned to each party.

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Bars to recission

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- where a contract is affirmed

- where restitution is possible (Clarke v Dickson)

- where third party acquires rights over the subject matter

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Tortuous damages of deciet

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Fraudulent misrepresentation involves making a false statement knowing it is false, believing it to be false or recklessly not caring whether it is false.

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Negligent misrepresentation

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Negligent misrepresentation is made carelessly, not dishonestly, without reasonable grounds to believe it is true

Howard Marine and Dredging v Ogden & Sons (Excavation) Ltd

remedy is either rescission or damages in lieu of rescission or damages under the tort of deciet

Doyle v Olby

Royscott Trust v Rogerson

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Innocent misrepresentation

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the person making the statement reasonably believed it to be true

Humming Bird Motors v Hobbs

remedy is rescission or order of damages, unless impossible (Zanzibar v British Aerospace)

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Principles of damages re tort of deciet

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Naughton v O'Callaghan