P wanted to buy a house from D and D’s husband answered one of P’s preliminary questions by saying that there were no boundary disputes, an answer which D knew was incorrect though her husband did not. There was a contractual condition that “no errors, mis-statement, or omission in any preliminary answer…shall annul the sale.” Dillon J held that the condition could be made either not to apply to misrepresentations through construction (it didn’t apply where the vendor had knowledge of the true answer but gave/allowed a wrong answer to be given) OR since it was voided under the Misrepresentation Act and s.11(1) UCTA. Therefore he found for P.
Dillon J: This term, if applied, would deprive P of her normal remedies for misrepresentation and therefore under s.3 it is for D to show that the term was UCTA reasonable, which D had failed to do (tried to say it was reasonable since it had been widely used- not good argument).
CW: this, together with Witter demonstrates courts’ unwillingness to allow terms that deny a statement of fact such as “no inducement” (though NB this isn’t true for “entire agreement” clauses which are outside scope of s.3- see Watford Electronics).