Chapter Ten Flashcards
(39 cards)
What is the relationship between deceit and misrepresentation?
Misrepresentation as a distinct cause of action arose out of the common law action of deceit. Intentional misrepresentation corresponds to what was known as “deceit” or “fraud” under the common law.
What are the basic elements of misrepresentation?
- The defendant misrepresents something with the intent of inducing the plaintiff’s reliance on that misrepresentation.
- The defendant knows that the representation is false or acts with reckless indifference to the truth.
- The plaintiff justifiably relies on the defendant’s misrepresentation.
How does intentional misrepresentation differ from negligent and innocent misrepresentation?
The requirements for an action of negligent misrepresentation are essentially the same as those for intentional misrepresentation, with the exception of the intent requirement.
Is nondisclosure grounds from misrepresentation? If yes, under what circumstances?
In the modern view nondisclosure may be considered concealment and grounds for misrepresentation when the defect is a latent defect (not visible to the buyer).
Is making a statement that is a half-truth grounds for misrepresentation?
Yes.
How do the courts treat transactions involving parties having a fiduciary relationship differently than transactions that are done at “arm’s length”?
The law imposes a more demanding obligation to disclose if there is a fiduciary relationship between the parties than if a transaction occurs at “arm’s length” (i.e. no special relationship exists between the parties).
To what group of persons is a defendant liable if he makes a misrepresentation?
Presently a plaintiff can recover if he or she is a member of a class that the defendant could reasonably expect to learn of and rely on the misrepresentation.
What state of mind is required for intentional misrepresentation?
Proof of intentional misrepresentation also requires showing that the defendant knew of the falsity of the statement or acted with reckless disregard to the truth.
Is a defendant liable if a plaintiff relies on the defendant’s misrepresentation but also conducts and investigation of her own?
If the plaintiff relies totally or almost totally on his or her own investigation, the plaintiff will be deemed not to have relied on the seller’s misrepresentation.
Under what circumstances is a plaintiff justified in relying on a defendant’s opinion?
such reliance may be justified. If a defendant and plaintiff have a fiduciary relationship, or if the defendant has worked to secure the confidence of the plaintiff, the plaintiff may be justified in relying on the defendant’s opinion.
How do courts treat statements by defendants that could be characterized as puffing?
Mere “puffing” is not actionable.
How do courts treat statements by defendants that could be characterized as opinion by a disinterested party?
Plaintiff’s reliance is more likely to be considered reasonable if the plaintiff reasonably perceives that the opinion is being expressed by a “disinterested” party, meaning a neutral one, someone who will receive no benefit.
How do courts treat statements by defendants that could be characterized as prediction?
A prediction that a certain event is bound to happen will almost always be regarded as an opinion. If, however, the defendant knows of facts inconsistent with the prediction, the defendant may still be found liable for misrepresentation.
How do courts treat statements by defendants that could be characterized as statement of limitations?
If a defendant makes a statement as to his her own intentions, a plaintiff’s reliance on that statement will frequently be considered justifiable.
What do plaintiffs have to prove in terms of causation?
The plaintiff in a suit for misrepresentation must prove that he or she sustained actual damages that were proximately caused by the defendant’s misrepresentation.
What is the difference between a reliance measure of damages and a benefits-of-the-bargain measure?
Damages for misrepresentation may be measured in two ways. The plaintiff may be asked to be put in the position he or she was in before the misrepresentation (referred to as the “reliance measure”). Alternatively, the plaintiff may be asked to be put in the position he or she would have been had the misrepresented facts been true (referred to as the “benefits-of-the-bargain measure”). The majority of courts use the latter measure of damages.
In what ways do the courts treat negligent misrepresentation differently than they do intentional misrepresentation?
Other than intent, the requirements for an action of negligent misrepresentation are essentially the same as those for intentional misrepresentation. The courts are most inclined to allow recovery for negligent misrepresentation when the defendant makes false statement during the course of the defendant’s business or profession or has a pecuniary interest in the transaction at hand.
Under what circumstances are today’s courts willing to allow recovery for innocent misrepresentation?
If a party involved in a sale, rental, or exchange transaction makes a material misrepresentation to the other in an effort to close a deal, he or she will be liable even if the misrepresentation is innocent
Why is nuisance referred to as the “legal garbage can”?
A precise definition of the term nuisance has eluded the courts for centuries and therefore it is referred to as a sort of “legal garbage can.”
What is the difference between private and public nuisance?
The essence of a public nuisance is an interference with “a right common to the general public”. A private nuisance, in contrast, is an unreasonable interference with the plaintiff’s use and enjoyment of his or her land
What are the elements of public nuisance?
The plaintiff must show that the public at large was actually injured or was exposed to the possibility of injury. The harm must be substantial.
why must the plaintiff prove that he suffered damages peculiar to him?
The rationale for this rule is that wrongs to the community as a whole should be redressed by the community’s representatives, to avoid duplication of legal actions.
In what way have the courts struggled with the concept of “particular damage”?
Some have allowed recovery if the plaintiff suffered greater economic loss than others in the community; others have denied recovery in similar cases. If the plaintiff’s pecuniary loss precludes the plaintiff from performing on a contract or causes the plaintiff additional expense in his or her performance, many courts have allowed the plaintiff to recover
What are the elements of private nuisance?
The plaintiff must prove that the use and enjoyment of his or her land was substantially interfered with and that the defendant’s conduct was either negligent, intentional, or abnormally dangerous.
