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Misrepresentation Notes

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Misrepresentation No general duty of disclosure during negotiation
= But duty not to make false statements of fact/law to induce the other party into contracting Induces the party to contract but isn't a term of contract ? not a mere promise/ contractual term Distinguish: (i) Term - parties intended for it to be a term (i.e. to provide warranty/guarantee/promise as to statement's accuracy (Oscar Chess Ltd v Williams; Dick Bentley Productions v Harold Smith) (ii) Promise -an undertaking to do/not to do something creating an expectation protected by law (iii) Representation -asserts existence of a given state of affairs, either true or false + invites reliance w/out constituting an undertaking to bring about that state of affairs Requirements 1) unambiguous 2) false 3) statement
? some positive conduct (written, oral etc.)
? silence is insufficient (With v O'Flanagan) nor mere failure to disclose 4) of existing fact or law
? NOT if: i) mere puff - statement that's too vague
? the more specific, the less likely to be a mere puff ii) honestly held statement of opinion/belief which proves to be unfounded ( Bisset v Wilkinson) a. where representor has greater knowledge/special skill, court will imply that representation must be made w/reasonable care & skill(Esso Petroleum v Mardon) b. facts are known to both parties = what one says to another is often merely expression of opinion iii) astatement of intent? unless D misstates his present intention ( Edgington v Fitzmaurice)
? But courts are flexible in defining a 'statement'? can be made by conduct or words 5) addressed to the party misled
? by direct communication
? by communication to TPw/intent to be passed on to C 6) which induced C to enter into contract
? doesn't have to besole inducement?actively present in representee's mind (Edgington v Fitzmaurice)
? Ccan't show inducement where he was: a. unaware of representation b. knew it wasn'ttrue c. didn't allow it to affect his judgment d. placed reliance on TP when entering into contract e. D corrected him & drew attn. to correction prior to any reliance
? not sufficient that C could have discovered the truth ? he must have actually discovered it!
7) ... and was material (possibly)
? meaning unclear?statement which would affectthe judgment of reasonable man on whether to contract on those terms Types
? All entitle representee to rescind but not all give rise to action for damages!!
1) Fraudulent = rescission +tort of deceit (Derry v Peek) i) proof of fraud?false representation made either:

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