Vitiating Factors - Misrepresentation P3

Question 1

What is a vitating factor

Answer 1

Something which makes a contract void or voidable. If a contract is void = no legal standing

Question 2

What does void mean

Answer 2

A contract that is declared to have no legal effect

Question 3

What does voidable mean

Answer 3

Contracts can be made voidable in certain circumstances - if right to make contract void is not excercised, it remains valid

Question 4

What are the two vitiating factors

Answer 4

Misrepresentation and Economic duress

Question 5

What is the definition of misrepresentation

Answer 5

An untrue statement of fact made by another to contract another
It must have ainducing effect
It cannot be a statement of opinion

Question 6

What is the case for a misrepresentation cannot be a statement of opinion

Answer 6

Dimmock V Hallet (1866)

Question 7

What is the case for misrepresentation is an untrue statement of fact

Answer 7

Bisset V Wilkinson (1927)

Question 8

What doe ‘It must have an inducing affect’ mean

Answer 8

It must lead the other party into making the contract where the statement in important to the person making the contract
They must have relied on statement made rather than own judgement or info obtainned elsewhere

Question 9

Which case showed that relience on a TP no longer meaning you are relying on the party who made the misrepresentation and therefore cannot be sued

Answer 9

Attwood V small (1838)

Question 10

What is the general rule for misrepresentation

Answer 10

Misepresentation cannot be given by silence

Question 11

Which case showed that a failure to disclose facts is not ususally misrepresentation due to caveat emptor

Answer 11

Fletcher V Krell (1873)

Question 12

What are the 4 exceptions to the general rule that misrepresentation cannot be given in silence

Answer 12

Deliberate concealment
Half truths
Change in circumstance
Uberrima Fides

Question 13

Which case showed that silence as a mean for deliberate concealment of defects is misrepresentation

Answer 13

Schneider V Heath (1813)

Question 14

Which case showed that where a statement has rendered false by change in circumstance there is a duty to disclose the change - failure = misrepresentation

Answer 14

With V O’Flanagan (1936)

Question 15

Which case showed that non-disclosure, may be misrepresntation as the marker of statement has a duty to reveal the whole truth

Answer 15

Dimmock V Hallet (1866)

Question 16

What did Lambert V Coorperative insurance show

Answer 16

The contract had been taken out in utmost good faith - Uberrima Fide

Question 17

Misrepresentation can be done..

Answer 17

Through conduct

Question 18

Which case showed misrepresentation can be done through conduct

Answer 18

Spice Girls Ltd V Aprilia (2000)

Question 19

What are the three types of misreprensation

Answer 19

Fraudulent
Neglient
Innocent

Question 20

What is Fraudulent misrepresentation

Answer 20

where the represent has intentionally lied about a fact or been reckless as to the truth - Derry V Peek (1889)

Question 21

What are the remedies for Fraudulent misrepresentation

Answer 21

Recission: Based on equality - a rewind remedy
Puts c back in the position they were before the misrep
Damages: Calulated as per the tort of deceit - generously
Includes all loosses flowing from the misrep
(CAN HAVE BOTH)

Question 22

What did Smith New Court Securities V Scrimgeour Vickers show

Answer 22

Damages under the tort of deceit can include all the losses flowing naturally from the original fraud

Question 23

what is Negligent Misrepresentation

Answer 23

The representor has been careless and in breach in whether a statement is true or not

Question 24

What are the two courses of action for negligent misrepresentation

Answer 24

Common law
Statute

Question 25

What is the common law route for negligent misrep

Answer 25

Under the Hedley Byrne V Hiller principles:
1) D must have a sksill or knowledge
2) C must reasonably rely on statement
3) C was a known user
4) Was a knwon purpose for statement
5) D accepts responsibility for advice given

Question 26

Which case showed that negligent misrep requires a special relationship between c and d

Answer 26

Esso V Marden (1976)

Question 27

Which case shows that C must be a knwon user for negligent misrepresentation

Answer 27

Goodwill V BPAS (1996)

Question 28

What are the remedies for negligent misrepresentation (common law)

Answer 28

Recission: Rewind based in equity
Discretionary
Damage: Calculated per tor of negligence (Roysot Trust V Rogerson)
Avaliabe ass of right
Must be reasonably forseeable (Wagon Mound)
CAN HAVE BOTH

Question 29

What is the sstatute route for negligent misrepresentation

Answer 29

S2(1) - MIsrepresentation Act 1967: once mis rep is proved, burden of proof is passed to the D to show reasonable grounds for believing his statement was true

Question 30

What did the case of Royscot Trust V Rogerson (1991) show for common law negliegent misrepresentation

Answer 30

Damages under common law for negligent misrep are assesed under the torrt of negligence (must be reasonably forseeable)

Question 31

What are the remedies for negligent misrep (Statute)

Answer 31

Recission
Damages: Calculated per tort of deceit (Smith Neww Court)
Avaliable as of right
Includes all losses flowing from misrep (SAME AS FRAUDULENT)
CAN HAVE BOTH

Question 32

What is innocent misrepresentation

Answer 32

Respresentor has a genuine belief in the truth of his statement e.g simply repeating advice given to them

Question 33

What are the remedies for innocent misrepresentation

Answer 33

Recission
OR
Damages: Not avalioabel as of right
A discretionary remedy
S2(2) Misrep Act allows damages to be awarded instead of recission
Only reasonably forseeable damages can be recovered (Wagon Mound)
CANNOT HAVE BOTH

Question 34

What are the ‘Bars to Recission’

Answer 34

Situation where recission is not possible:
Affirmation (Long V Lloyd)
Delay (Leaf V Internal Galleries)
Impossibility (VIgers V Pike)
Third Party Rights (Lewis V Avery)