Misrepresentation Different remedy for different falseness

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When false statement which induces contract is a term within the contract o Term = enforceable undertaking to do something
? When term is breached remedies available are:

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Specific performance (if sought and appropriate)

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Damages which put C in position as if contract performed.

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Termination if sufficiently serious

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When false statement which induces contract is a representation about something outside of the contract o Representation = statement which asserts truth of given state of facts and invites reliance on it
? Without giving an enforceable guarantee of its truth

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Remedies available: o Rescind Contract o Claim damages to put C in position as if C had not relied on the statement's truthfulness (i.e. not entered the contract) Why this can make a difference

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Rescinding a contract or claiming damages to "undo" the effect of contract o is useful if you've made a bad bargain
? Thus you'd try and claim the false statement is a representation about something outside the contract

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Whereas being able to claim your expectation interest o Or have opportunity to request specific performance
? Is better if you've made a good bargain

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Thus you'd try and claim (first and foremost) the false statement is a term of the contract rather than a representation.

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How to distinguish between a term and a representation o Intention of Parties manifested by their words and conduct
? Heilbut, Symons and Co v Buckleton:

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Importance of truth of statement to the representee o More important, more likely term

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Whether speaker had special knowledge o More specialist knowledge, more likely a term

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Whether innocent party was asked to verify the truth o If asked to verify, more likely representation

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Whether speaker initiated false statement or merely passed it on o If not first "false speaker" then less likely term

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Whether statement was formally recorded o If recorded, more likely term (parole evidence rule) (although statement outside of document can be classed as collateral term) Requirements for Misrepresentation

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1. Unambiguous, false statement o Of existing fact
? Can be made by words or conduct o Of intention that is in fact

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