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OPINION EXAM NOTES Is Limitation an issue Limitation for claims under s.2(1) Misrepresentation Act 1967 or common law misrepresentation run from the time the claimant entered into the contract. The limitation period is 6 years from this date (Green v Eadie and others [2011] EWHC B24 (Ch))

Is the statement a term of the contract or a representation?
It may be possible to argue that ________ was a term of the contract between Mr X and Mr Y. To determine if this was the case the court will objectively judge whether it was Mr Y's intention to guarantee the truth of their statement Inntrepreneur Pub Co. v Sweeney [2002] EWHC 1060 (Ch)). Factors to consider

* Vital importance: Bannerman v White (1861) 10 CB NS 844 - A statement is likely to be a term if the recipient of the statement makes it clear that the statement is of vital importance.

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Verification: Ecay v Godfrey (1947) 80 LI L Rep 286 - A statement is unlikely to be a term if the maker asks the other party to verify it. Schawel v Reade [1913] 2 IR 81 (HL) - If the seller tells the buyer not to bother with a survey, this points to a statement about the quality of goods being a term.

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Lapse of Time: Routledge v McKay [1954] 1 WLR 615 - A lapse of time between making the statement and the contract suggests it is more likely to be a representation.

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Greater Skill/Knowledge: Dick Bentley Ltd v Harold Smith (Motors) Ltd
[1965] 1 WLR 623 (CA) - If the maker of the statement has the greater skill or knowledge, then the statement is more likely to be a term. Oscar Chess Ltd v Williams [1957] 1 WLR 370 (CA) - If the recipient of the statement has the greater skill or knowledge then the statement is more likely to be only a representation.

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Repeated in the Written Contract: Routledge v McKay [1954] 1 WLR 615 - If the statement is not written into the contract then it is more likely to be a representation. Birch v Paramount Estates (1956) 167 EG 196 - The court may decide that the oral statement is in fact a term and that the contract is made partly in writing and party orally.

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If it wasn't a term, why not? If it was so important why wasn't it specified?

However, regardless of whether it can be shown that the statement was a term of the contract, in my opinion, there is little point in doing so in any event. This is based on taking a commercial view of which legal avenue will produce the most favourable result for C, which I will expand upon when detailing the remedies available below. Is it a misrepresentation?
A misrepresentation is an unambiguous false statement of fact made by one party to the other which induces the other party to enter into the contract. a) A False Statement Law:

* In Curtis v Chemical Cleaning and Dyeing Co. Ltd [1951] 1 KB 805, Denning LJ stated that, 'any behaviour, by words or conduct, is sufficient to be a misrepresentation'.

* Silence does not normally constitute a misrepresentation (Hamilton and Others v Allied Domecq plc [2007] UKHL 33)

* However, where a truthful statement of fact is made but is subsequently rendered misleading by a change of circumstances, there is a duty to correct what has become a false impression (With v O'Flanagan [1936] Ch 575). In Spice Girls it was held that there was a duty to correct the representation by conduct.

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Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland Plc [2010]
EWHC 1392 (Comm), [2011] 1 Lloyd's Rep. 123 at [86], the question is whether the statement is one 'upon which the representee was intented and entitled to rely'.

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Unambiguous: McInerny v Lloyd's Bank Ltd [1974] 1 Lloyd's Rep 246 (CA) - The misrepresentation must be unambiguous. A party making a representation, which on a reasonable construction is true, will not be liable for misrepresentation simply because the representee has put some other construction on it which is not true.

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It must be shown that the representee understood the statement in the sense which the court ascribes to it (Smith v Chadwick (1884) 9 App Cas 187).

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Whether a representation has been made will be assessed objectively, according to the impact the statement may be expected to have on a reasonable person in the position and with the known characteristics of the actual representee (MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957)

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Misrepresentation also includes a false statement of law (Pankhania and another v London Borough of Hackney [2002] EWHC 2441 (Ch)

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In well-known dictum it's been held that, 'a nod or a wink or a shake of the head or a smile' may amount to a representation if it is intended to induce the other party to believe a certain set of facts (Walters v Morgan (1861) 3 De G.F. and J 718, 723

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Ordering goods in the course of business carries a representation that the buyer is not aware that he will be unable to pay for them (Ray v Sempers [1974] AC 370).

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Statement as to the future: A statement as to the future is not, in general, a representation of existing fact (Inntrepreneur Pub Co. v Sweeney [2002]
EWHC 1060 (Ch)). However, the courts have recognised that a statement as to the future may involve an implied misrepresentation to the present. Indeed, in Spice Girls it was held that a pop group had made an implied misrepresentation when they continued with arrangements to publicise the defendant's products despite knowing that one member of the group was intending to leave the group shortly, which would prevent the contract being carried out.

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As Lewison J confirmed in FoodCo UK LLP and others v Henry Boot Developments Ltd [2010] EWHC 358 (Ch), a statement about the future does not mean that the representor does not know of any matter which might falsify the statement. The test remains, what would a reasonable person in the position of the representee understand the statement to mean.

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A statement as to the future is not, in general, a representation of existing fact (Inntrepreneur Pub Co. v Sweeney [2002] EWHC 1060 (Ch), [2002] 2 EGLR 132).

Is it false?
Falsity is sometimes a matter of degree. Avon Insurance plc v Swire Fraser Ltd
[2000] 1 All ER (Comm) 573, [2000] CLC 665, Rix J held that the test to see whether the statement is 'substantially correct' so that any difference between what was represented and the correct position would not have been likely to induce a reasonable person to make the contract Are there multiple statements?
Spice Girls (61): 'whilst it is necessary to give each episode separate consideration it is also necessary to have regard to their cumulative effect.'

3 b) False Statement must be a fact not be an opinion or intention A false statement of fact does not include a statement of belief or opinion or a statement of future conduct or intention. Law

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False Opinion: Connolly Ltd v Bellway Homes Ltd [2007] EWHC 895, [2007]
ALL ER (D) 182 - If a person states that he holds an opinion that in fact he does not hold he makes a false statement of fact. This case also confirmed that if a reasonable man having the representor's knowledge of the facts would not hold the opinion, then it's a statement of fact (me - needs clean up).

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Duty to Research: There is no duty imposed upon a person to carry out inquiries to establish an objectively reasonable basis for that statement of belief (Hummingbird Motors Ltd v Hobbs [1986] RTR 276).

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Statement maker's knowledge: Where the representor is in no better position to know the facts than the representee, and the representee knew this, the statement is more likely to be an opinion (Bisset v Wilkinson [1927] AC 177). However, where the representor is in a better position to know the true position than the representee, that representor is representing that his statement is based on a reasonable belief and that he has reasonable grounds for making it. If follows that if the representor had no such reasonable belief or reasonable grounds, the false statement will constitute a misrepresentation (Smith v Land and House Property Corporation (1884) 28 ChD 7). Springwell Navigation Corp v JPMorgan Chase Bank (formerly Chase Manhatten Bank) [2010] EWCA Civ 1221 - alleged misrep hadn't been made by employee of defendant bank as employee was merely giving opinion on the qualities of investment rather than stating any fact. Clear that Court of Appeal influenced by the fact C was a sophisticated investor.

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Intention/Continuing Representation: A statement as to the future is not, in general, a representation of existing fact (Inntrepreneur Pub Co. v Sweeney
[2002] EWHC 1060 (Ch), [2002] 2 EGLR 132). However, if at the time of stating the intention the person did not in fact have any such intention, then that would be treated as a misrepresentation (Edgington v Fitzmaurice [1885]
24 ChD 459).

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Change of intention: There is no duty to disclose a change of intention (Wales v Wadham [1977] 1 WLR 199). However, in Wales, the statement could not be taken as a statement that the defendant would never change her mind. It was honestly held at the time it was stated. Whereas, the Court of Appeal held in Inclusive Technology v Williamson [2009] EWCA Civ 718, [2010] 1 P & CR 2 that where the statement about intention only makes sense as a continuing representation as to the future, then there is a duty to inform a change of intention.

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