Contract Law Second Term - MISTAKE AND MISREPRESENTATION Flashcards Preview

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Flashcards in Contract Law Second Term - MISTAKE AND MISREPRESENTATION Deck (263):
1

Pitt v Holt, per Lord Harman?

'True requirement is for there to be a causative mistake of sufficient gravity'

1

When is the only time future intention is actionable as a statement of MR?

When the person know they have no intention/cannot do it; MR of existing intent

2

Hartog v Colin & Shields

Argentine hare skins

2

What was the type of mistake in McRae?

Deliberately induced mutual mistake without reasonable grounds

2

What are the three important points in Great Peace?

(1) Extremely narrow view of mistake, (2) emphasis placed upon construction of contract and (3) drew an analogy between cases of common M an cases of frustration

2

Hailbut, Symons & Co v Buckleton

Consider context of statements for MR

3

CoA denied appeal to HoL because insignificant damages, but noted both academic and judicial criticism of s.2(1) MRA

Forest International v Fosters Marketing

4

Who said it was 'too soon' to throw Solle and the case law it generated 'into oblivion'?

McKendrick

4

What case showed that a claim for damages for NMS is vulnerable to rule on remoteness?

The Wagon Mound

4

What type of remedy is rescission and when is it used?

Equitable, and only when parties can be restored to their original positions

5

What case explains the workings of rescission for MR?

Car & Universal Finance Co v Caldwell

6

When is an opinion considered actionable as an MR statement?

When it is 'by the one who knows best' and implied he knows facts to justify it

6

Why was the description of land as 'fertile and improvable' in Dimmock v Hallett not seen as a statement of fact?'

'Flourishing description'

7

What case gives the requirements for FMR?

Derry v Peek

7

How could the outcome have been different in Leaf v International Galleries?

If it had been FMR instead of IMR

7

Why would C use FMR over s.2(1)?

If C has been careless and wishes to avoid CN

8

What type of action is FMR?

Tortious, not contractual

9

What was the type of mistake in Cundy v Lindsay and effect on contract?

A thinks B is C so void

10

What was Nicholls' view in Shogun Finance on the tension between face-to-face and written contract dealings?

Same principle should be applied 'irrespective of the precise mode of communication'

10

Dimmock v Hallett

Fertile and improvable land

12

What case shows that A's right to rescind is restricted if it would affect subsequently acquired rights by C, a bona fide purchaser?

Lewis v Averay

13

Example of res extincta?

Couturier v Haste; Scott v Coulson

13

How did MacMillan describe the case of Bell?

a 'failed case of fraudulent misrepresentation'; 'hard cases really do make bad law'

13

What are the two types of remedies for misrepresentation?

Damages (backward looking) and/or rescind the contract

14

Redgrave v Hurd

Solicitor's firm - £300, but only £200

15

What was the ratio in Bell v Lever Bros (in regard to the mistake)

it doesn't matter if B would have not entered the bargain had they known the true facts; he gets 'exactly what he bargains for' (Lord Atkin)

16

Lady Hood of Avalon v Mackinnon - test for mistake

Consider seriousness of the consequences of the gift

17

What type of mistake was in Griffith v Brymer?

Operative - purpose can't be fulfilled; already decided

17

What are the two ways we could reform mistake?

Articles 4:102 - 105 of 'Principles of European Contract law' for greater flexibility OR H Beale's alternative framework in "Mistake and Non-Disclosure of Facts"

17

What statement was seen as a statement of fact/half truth in Dimmock v Hallett and the contract was unwound on this ground?

That the area was fully let but one of the tenants had given notice

18

What did Denning say about Cundy in Solle?

Should have been a voidable contract

19

What case shows the 'triumph of orthodoxy' for mistake?

Great Peace Shipping Ltd v Tsavliris Salvage Ltd

19

How can one determine if a mere puff is actionable as a statement of MR?

Look to the specificity and concreteness of the statement

20

Who gave four ingredients for common mistake and in what case?

Lord Phillips in Great Peace

20

Actionable MR usually gives rise to two remedies; what are they?

Rescission and damages

21

What case shows the first challenge the the Orthodox position to mistake (Smith v Hughes)?

Shogun Finance Ltd v Hudson

23

what is the basic rule of mistake?

if B is not responsible for A's mistake, even if B's knew, it has no effect

24

In what case did the equitable doctrine of mistake appear?

Solle v Butcher

24

Chartbrook v Persimmon Homes

Rectification allowed if the terms do not reflect objective intention of both parties; the 'prior consensus'

24

What major issue did the court in Great Peace have with Solle?

It overruled Bell v Lever Bros essentially

24

Joscelyne v Nissen

Father and daughter; 'rent and outgoings'

25

Why was the statement in Smith v Land not considered mere puff?

It was dishonest and deliberately misleading of a very relevant point

25

In an MR question, where should you go before fraud due to advantages for the claimant?

S.2(1) MRA

26

What are the two difficulties with the mistake as to identity cases?

The difficult relationship between a written and an oral contract; difficult relationship between face-to-face dealings

26

Why should H Beale's alternative framework NOT be used?

He himself states it would be 'less certain than the current law'

27

Smith v Land and House Property Corporation

Opinion was a material fact because 'by the one who knows the facts best'

28

Carlil

Smoke ball; promise was a term of the contract

28

What is the measure of damages for NMS the same as?

Tort of negligence

29

What did Lord Atkin say in Bell about the mistake?

He gets 'exactly what he bargains for'

30

Bisset v Wilkinson

Sheep

31

How can s.3 MRA be overcome?

Satisfy reasonableness requirement in s.11 UCTA

32

When can a claimant not claim non est factum and according to what case?

When he has been carless/hasn't read it by choice (United Dominions Trust Ltd v Western)

33

What fits under IMR now?

Statement that is neither fraudulent not negligent

34

What are the three exceptions to silence not giving actionable MR?

Half truths; continuing representations and contracts uberrimae fidei

34

With v O'Flanagan

income of medical practice but ill

35

Royscott Trust Ltd v Rogerson

Finance company; hire deposit lower than stated and customer defaulted

36

Why was the statement in Esso Petroleum considered MR?

Superior knowledge of the petrol company

36

What is Clarke v Dickinson an example of in the area of rescission?

Parties cannot be restored so bar to rescission

36

Why would C use NMS over s.2(1)?

No contractual relationship with D

37

What is the test for inducement in MR?

To affect a reasonable person

38

Why is the approval of McRae in Great Peace difficult?

Hard to reconcile with s.6 SoGA; why distinguish between goods that have perished and those that never existed?

39

What did Nicholls and Millett argue for in Shogun?

Overruling Cundy and preferring later decisions (i.e. Lewis v Avery)

40

What type of MR was there in Redgrave v Hurd?

Innocent MR

41

Bell v Lever Bros

Employees, breach

42

What are the two ways an MR can be made?

Directly or through a third party with the intention that it be passed on (Smith v Eric S Bush)

43

Museprime Properties Ltd v Adhill Properties Ltd

If statement wouldn't have induced the reasonable person then the claimant must show it induced them

43

On whom does the burden fall for FMR and why?

Claimant, because taken seriously

43

Why is s.1(a) MRA attractive?

Rescission is far easier under MR than under BoC

44

Why was rescission rejected in UCB Corporate Services v Thomason & anor?

No loss to representee

45

What do damages do in MR?

Reflects profit that would have been made without MR; Forward-looking.

46

What are the two written contract mistake cases?

Cundy; King's Norton Metal Co

46

When is it less likely a common mistake will be fundamental?

When it's as to the quality of the goods (Bell v Lever Bros; Smith v Hughes; Leaf v International Galleries)

47

Ingram v Little

Two sisters; post office

48

Derry v Peek

Steam power

49

What did Moore-Bick J say in Peekay International Ltd v ANZ Banking Group Ltd?

No reason why parties should not be allowed to give up right to claim MR, regardless of inducement and materiality

50

Esso Petroleum Xo Ltd v Mardon

Thoroughfare

50

Why is s.3 MRA no longer as big of an issue as T&A thought it was?

Now dealt with by reasonableness test of s.11 UCTA

52

Raffles v Wichelhaus

Two Peerless sailings (D - Oct; C - Dec)

52

What was two examples of an MR of existing intent (one failed and one succeeded)?

Wales v Wadham; Edgington v Fitzmaurice

52

What is Long v Lloyd an example of?

C affirming the contract and being unable to rescind it consequently

53

What case is Magee very similar to?

Bell

55

What did Denning say in British Movietonesws v London and District Cinemas?

Courts can change a contract to make it 'just and reasonable' even if event occurred after contract and did not frustrate it

56

What two academics said that s.2(1) is to compensate victim of MR for loss flowing from it?

Treitel and Atiyah

58

Why was it decided the contract was void (had never existed) in Cundy?

Of C 'they knew nothing, and of him they never thought' (Lord Cairns)

58

What does unambiguous mean in the context of misrepresentation?

If it could be interpreted to be true then there is no MR

60

What did Phillips rely on to show that performance was not impossible in Great Peace?

The gap between CP realising how far away GP were and cancelling the contract

61

In regard to s.2(2) MRA, what case stated that you do need to still have a right to rescission at the date of the hearing?

Government of Zanzibar v British Aerospace (Lancaster House) Ltd

63

What did Lord Cranworth LC say in Couturier v Haste about the cotton?

'No such thing existing', it could not be sold or purchased so buyer could not sue seller for price

64

Associated Japanese Bank Ltd v Credit du Nord SA; what did Steyn say?

He said there are essentially three stages; (1) did the contract provide who bears the risk of the mistake? If no, (2) is the contract void at common law? If no, (3) is the plea in equity valid?

65

Cundy v Lindsay

Handkerchiefs

66

Under what section of MRA are damages awarded in lieu of rescission?

S.2(2)

67

Who said in Bell that the he gets 'exactly what he bargains for'?

Lord Atkin

67

When is it more likely a common mistake will be fundamental?

When as to the existence of the subject matter (s.6 SoGA; McRae)

68

Why is rescission sometimes used even when the MR has become a term?

To get out of the contract without damages

68

IFE Fund SA v Goldman Sachs International ratio

If no actual knowledge that information is misleading, maybe no duty to disclose

69

Phillips v Brooks

Ring and cheque

70

In what case did the CoA deny appeal to HoL because insignificant damages, but noted both academic and judicial criticism of s.2(1) MRA?

Forest International Gaskets Ltd v Fosters Marketing Ltd

72

Why was the nemo dat exception of the minority in Shogun rejected?

SoGA had enshrined nemo dat so they cannot abrogate or modify the rule (see s.23 and 21)

73

Nicholls in Gran Gelato v Richcliff (Group) on s.2(1) MRA?

CN forms a part of the section

74

What was the MR by the solicitor in Redgrave v Hurd?

Stated that the firm brought in £300, but only £200

74

Redgrave v Hurd

Elderly solicitor

74

What case showed that a duty of care under NMS does not extend to a fall in the market price?

South Australia Asset Management Corporation v York Montague Ltd

76

What type of contract does a MR produce?

Voidable

77

What are the three ways mistake in equity differs from that in common law according to Solle?

Scope is wider, renders contract voidable and greater remedial flexibility (setting aside 'on terms')

78

What was the legal test set down by Lord Phillips in Great Peace?

Analogy with frustration; high legal test of impossibility and lack of provision in the contract

79

Clinicare Ltd v Orchard Homes & Developments Ltd

Investigate dry rot

79

What does s.2(3) MRA regulate?

Limits freedom to exclude liability for MR if it (1) excludes/restricts liability for MR made before C or (2) excludes/restricts any remedy available due to MR

80

What was the split in Shogun in terms of the judgement?

3:2

81

What remedies are available for IMR?

Only rescission; no damages

81

Why is the 'fiction of fraud' criticised?

'Treats rogues as fools'

81

What section of MR does Creamdean v Nash outline?

S.3

83

What type of goods does s.6 SoGA cover?

Specific goods which have perished at the time of contract

84

When is misrepresentation actionable?

When (1) an unambiguous false statement of existing fact (or law), (2) is made to the claimant, (3) which induces him to enter the contract

84

Islington LBC v UCKAC

Voidable contract exists until 'set aside by an order of rescission'

85

What other argument was followed in Shogun, and rejected?

Bailment of car to fraudster

86

Lady Hood of Avalon v Mackinnon

Large gift to elder daughter, forgetting earlier large gift upon marriage

87

Edgington v Fitzmaurice

Debts from shares; portfolio

89

What is the requirement for a gift/voluntary disposition to be set aside for mistake?

Causative mistake of sufficient gravity

90

What is non est factum?

Failure/inability to understand the nature of the document you have signed

91

What case shows how difficult it is for defendants to escape liability under s.2(1) MA?

Howard Marine v A Ogden & Sons

93

What three different categories of mistake did Lord Atkin give in Bell?

Identity, existence of subject matter and quality

94

Who said s.2(1) MRA 'treats fools as rogues'?

R Hooley

95

Why was Gordon v Selico slightly difficult for MR?

Whether it was non-disclosure (non-actionable) or actionable, active conduct to conceal the rot

96

Why might C not use s.2(1) MRA in general?

Court may enforce Draconian consequences or MR made after contract

97

Smith v Eric S Bush

surveyor reports to bank knowing it will be passed to purchaser

98

What two cases show the courts refusing rescission due to harshness on representor?

UCB Corporate Services v Thomas & anor; William Sindall plc v Cambridgeshire CC

100

Name at least three policies underpinning mistake, according to McKendrick

Promoting commercial certainty, 'fairness' or upholding integrity of agreement (hampered by Smith: objective test)

101

What type of MR was there in Caldwell?

FMR

103

What four things did Lord Phillips suggest need be present for common mistake to void a contract in Great Peace?

(1) Common assumption as to existence of affairs, (2) no warranty by either side, (3) non-existence not attributable to fault and (4) renders performance impossible

104

Name five types of mistake (one is a defence)

Unilateral, common, mutual, misrepresentation and non est factum

106

Smith v Hughes test for mistake

Objective test, regardless of knowledge

106

What concept did the case of Cundy v Lindsay introduce?

That contracts could be void automatically for mistake of identity if it is of crucial importance

106

what did T&A say about s.3 MRA?

Enormous width

108

Solle v Butcher

Rent restriction acts

109

What case followed Solle?

Magee v Pennine Insurance

110

When is the effect of a mistake to mean the contract is void?

No agreement

111

What are the three causes of common mistake?

Res sua, res extincta and mistake as to quality

112

What remedy of MR is a right?

Damages

114

When is rectification of a mistake possible?

If B knew or B suspects A has made a mistake and B caused it

115

What is the main requirement for common mistake?

It must be fundamental

116

What case shows that if A's mistake caused by B's MR leads to a void contract, A may be protected against C?

Cundy v Lindsay

117

What is the difference between common and mutual mistake?

Common is they make the same mistake; mutual is they are at cross-purposes

118

Smith v Chadwick, per Lord Blackburn on inducement

Only need to show it was 'likely to induce a person to enter into a contract'; no need to call claimants as witness

119

What was the common fundamental mistake in Magee?

That Magee had a valid claim

120

Fitzroy Robinson v Mentmore Towers Ltd

Lead architect

120

William Sandall plc v Cambridgeshire CC

Private foul sewer

121

Why does FMR produce the greatest damages?

No remoteness limit and no reduction for CN

123

What happens if B is responsible for A's mistake by make a misrepresentation?

A can avoid any contract entered into on reliance of the MR

124

What are the two elements of non est factum?

Permanently/temporarily unable to understand document, but no fault and (2) real/substantial difference between what he thought it was and what it was

126

What case shows the orthodox position to mistake?

Smith v Hughes majority position

128

What are the two coronation cases?

Griffith v Brymer (mistake) and Krell v Henry (frustration)

130

When is the effect of a mistake to mean the contract is voidable?

Agreement but limited and assumptions falsified so consent is nullified

132

Why did the mistake claim in Smith v Hughes fail?

Mistake not to a fundamental term but to quality

132

Creamdean v Nash

Resulted that from the clause, no representations had been made at all so not reasonable

134

What happens if A's mistake caused by B's MR gives no contract with B?

A may even be protected against C (Cundy v Lindsay)

134

In Associated Japanese Bank v Credit du Nord SA, what did Steyn suggest about the application of mistake in equity?

Supplementary to common law

135

In what case did the Court expand heads of damages for FMR to 'loss of chance'?

4 Eng Ltd v Harper

136

Name at least four cases of mistake as to identity

Shogun Finance; Cundy; King's Norton Metal Co; Phillips v Brooks; Ingram v Little; Lewis v Avery

138

Couturier v Haste

Selling corn already sold

139

Clarke v Dickinson

Shares in partnership, converted to limited liability company

141

Why was there no mistake in Leaf v International Galleries?

He believed he was buying a painting and he got a painting

142

How does s.2(2) tie up with s.1(a) MRA?

S.1(a) allows rescission even if a term, but s.2(2) controls this by meaning the court can give damages instead; balancing the two

144

What were the two grounds of explanation in Shogun among the majority?

(1) There is a distinction between written contracts and non-written contracts, and (2) return to application of general objective test of contract formation and avoid distinctions

145

What are two examples of third party rights accruing such that it is a bar to rescission?

Phillips v Brooks --> Ring; s.23 SoGA

146

McRae v Commonwealth Disposals Commission

Oil tanker

147

What does the case of McInterny v Lloyd's Bank Ltd show about the requirement for a statement to be unambiguous?

No unreasonable construction of the statement can be placed on it by the other party

149

What is the general rule for unascertained goods?

Blackburn Bobbin Co Ltd v TW Allen & Sons Ltd: lack of availability is no excuse for seller

150

What did the judges suggest in GP in terms of remedial flexibility?

They suggested 'scope for legislation to give greater flexibility to our law of mistake than common law allows'

151

What case gives the requirements for negligent misstatement?

Hedley Byrne v Heller & Partners

153

What is the effect of a mistake?

To negative or nullify consent

154

Smith v Land and House Property Corp

'Desirable tenant'

155

How are damages for NMS assessed?

All losses reasonably foreseeable and not too remote; also vulnerable to CN

156

Why was there no mistake in King's Norton Metal Co v Edridge Marrett & Co Ltd?

No separate entity between B and C, so not a valid claim for mistake

158

Spice Girls v Aprilia World Service BV

One member leaving

159

Why is there a difficult relationship between face-to-face dealings in cases of mistake as to identity?

How to distinguish Ingram (sisters) and Lewis (Pinewood)

159

What was the test set down for NMS in Hedley Byrne?

(1) Special relationship, causing a duty of care; (2) burden of proof on represent to prove (1); (3) measure of damages vulnerable to remoteness and contributory negligence

161

What case made it clear a unilateral mistake is not sufficient for rectification?

Riverlate Properties Ltd v Paul

162

Doyle v Olby (Ironmongers)

"The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement", Denning

163

'Fiction of fraud'

Royscott Trust v Rogerson

165

Why can't we be sure the judges decided on a lack of consensus ad idem voiding the contract, according to AWB Simpson?

No reasons given

166

What are the four face-to-face dealing mistake cases?

Shogun; Ingram v Little; Phillips v Brooks; Lewis v Avery

166

What is the remedy for breach of contract?

Damages (forward looking)

168

Why was there an action for MR in Clinicare Ltd v Orchard Homes & Developments Ltd?

Implying they had carried out further investigation into dry rot when they hadn't

169

Before 1967, what were the two categories of MR?

Innocent and FMR

170

Magee v Pennine Insurance

Insurance proposal incorrect, compensation

171

What was the ratio in Dimmock v Hallett?

The more specific and concrete the statement, the more likely it will be considered a statement of fact

171

What happens when there has been a material non-disclosure in contracts of insurance?

Insurer can avoid the contract

173

What test did Raifeissen Zentralbank Osterreich AG v Bank of Scotland give for inducement of a statement of MR?

Must have been a real and substantial part of inducement, but need not have been the sole inducement (but for causation)

174

What does s.1(a) MRA allow?

Terms of contract can be rescinded when party has been misled by IMR; prior to this, only allowed remedies through BoC

175

What case shows the importance of construction of contract in mistake, highlighted by the judges in Great Peace?

Couturier v Haste; you can contract out of s.6 so see if promise has been made as to existence, but no, so the contract is void

176

What form did the challenge to the Orthodox position come in?

Equitable doctrine of mistake

178

What was the inference of law in Redgrave v Hurd?

If statement was material and intended to induce, it is seen as inducing and there is no duty to inspect the papers

179

Long v Lloyd

D repairs lorry, keeps using it, so can't claim against MS statements causing them to buy the lorry

180

What is Leaf v International Galleries an example of in the area of rescission for MR?

Lapse of time; five years later

182

What additional exception to what doctrine did the minority in Shogun attempt to establish?

Nemo dat through 'possession vaut titre' (assumption to protect 3rd party)

183

Who said, for mistake to set aside a gift, that there needs to be a 'causative mistake of sufficient gravity'?

Lord Harman in Pitt v Holt

184

What two causes seem to show that a unilateral spontaneous mistake by A may suffice to set aside a gift?

Pitt v Holt; Lady Hood of Avalon v Mackinnon

185

McInerny v Lloyd's Bank Ltd

Loan was stated as being 'suitable for purposes'; not intended as a guarantee

187

What did the buyer in Redgrave v Hurd not do?

Check the accounts for the extra £100 missing

188

Now, what two events in particular have reduced IMR?

Hedley Byrne and MA

190

Peekay International Ltd v ANZ Banking Group Ltd

'Non-reliance' clause

191

What did Solle v Butcher say was the effect of mistake on the contract?

Voidable in equity

192

Why is NMS less favourable than FMR?

Damages limited by remoteness and CN, unlike in tort of deceit - requires foreseeability

193

When will s.2(2) be used?

OTHER THAN WHEN THE MR IS FRAUDULENT

194

What happened on appeal in British Movietonesws v London and District Cinemas?

Denning's argument per rectification was rejected

195

Great Peace Shipping Ltd v Tsavliris Salvage Ltd

Cape Providence; 35 or 410?

196

When are courts unlikely to uphold rescission, and perhaps give damages under s.2(2) instead?

When the MR is trivial or will have a huge impact on defendant

198

Hedley Byrne v Heller & Partners

Financial information from bank of third party; considerable loss

199

Why is Great Peace problematic in particular (2)?

CoA overturned their own decision and judicially removed remedial flexibility

201

Griffith v Brymer

Coronation room (operative mistake)

202

Why was Caldwell held to still own the car?

Reasonable steps to express desire for rescission by contacting police PRIOR to car being sold

204

What did Jessel MR say in Redgrave v Hurd?

No 'benefit from a statement which he now admits to be false'

205

Why does Hooley suggest the reference to FMR in s.2(1) should be removed?

FMR is an intentional tort

206

S.6 SoGA?

Contract for sale of specific goods which have perished at time of contract, unknown to the seller, voids the contract

207

What are the four types of MR?

Fraudulent, negligence misstatement at common law, statutory claim under s.2(1) MRA 1967 and innocent MR

209

What was the alternative framework suggested by H Beale in "Mistake and Non-Disclosure of Facts"?

M can be used if (a) A, but for the mistake, would have used different terms or no contract at all, and (b) B knew of the mistake and its importance unless (i) mistake was as to value of performance or (ii) the risk of the mistake was assumed

211

According to Peter Gibson LJ in Swainland Brothers Ltd v Freehold Properties Ltd, what elements need to be proved for rectification?

(1) Common intention over a particular matter, (2) outward expression of accord, (3) intention continued at the time of execution of instrument and (4) instrument did not reflect common intention by mistake

212

What type of claim is rectification?

Equitable, discretionary remedy

213

Resulted that from the clause, no representations had been made at all - caught under s.3 MRA?

Creamdean v Nash

214

Wales v Wadham

Remarry

215

What did the CoA do in Hedley Byrne v Heller & Partners?

Extended CL tort of negligence to negligent misstatements causing loss

217

What did Chitty say about Raffles?

Unlikely we would not be able to adopt one interpretation over another so rarely followed

218

In regard to intention continuing at the time of execution of an instrument for rectification, is this an objective or subjective test and according to what case?

Objective; Chartbrook Ltd v Persimmon Homes Ltd

219

What type of damages is under s.2(1) MRA?

Reliance measure; not contractual

221

When does Derry v Peek say fraud has been proved?

When the statement has been made (1) knowingly, (2) without belief in its truth or (3) recklessly

222

Who said contributory negligence forms a part of s.2(1) MRA?

Nicholls in Gran Gelato v Richcliff (Group)

224

What was the type of mistake in Hartog v Colin & Shields and effect on contract?

If B knows A is mistaken as to terms, A's consent is nullified

225

What does Spice Girls v Aprilia World Service BV show in particular about a statement caused by words/conduct?

There is a thin line between actionable conduct and non-disclosure

226

What is the main difficulty in NMS?

Difficult to prove misstatement

227

What does Jocelyn v Nissen say about rectification and prior consensus?

It need only have been continuing and present when the written document was signed; does not need to have amounted to a concluded contract

228

Name the five bars to equitable, discretionary remedy of rescission

C affirms the contract as voidable so can't rescind; lapse of time; can't restore the parties; third party rights accrue; or damages in lieu of rescission

229

What three cases did the minority in Shogun find to be irreconcilable?

Cundy with Phillips and Lewis

231

What type of MR is Fitzroy Robinson v Mentmore Towers?

Fraudulent MR

233

Walters v Morgan

'nod or a wink'

234

What was rescission rejected in William Sandall plc v Cambridgeshire CC?

Bad bargain; using s.2(2) when C is trying to get out of a bad bargain; flexibility

236

Gordon v Selico

Conceal dry rot

237

Shogun Finance Ltd v Hudson

Hire-purchase; Patel; driving licence

238

What is an example of a contract uberimmae fidei?

Contract of insurance

239

In what case was the statement for MR extended from existing fact to law?

Pankhania v Hackney LBC

240

What case gives the basic rule for silence and actionable MR statements?

Keates v The Earl of Cadogan

241

If an inducement is shown to have affected the reasonable person what can the defendant do?

Prove lack of reliance on it

242

What three cases show MR statement by words/conduct?

Walters v Morgan; Gordon v Selico; Spice Girls v Aprilia World Services BV

243

What did Lord Atkin say in Bell about the effect of the assumption a contract being destroyed?

Consent is then nullified

244

King's Norton Metal Co v Edridge Marrett & Co Ltd

Company name

245

Why was the opinion in Bisset v Wilkinson not considered actionable as MR?

Lack of expertise limited it to being an opinion, not a statement of material fact

246

Scott v Coulson

Res extincta - dead

247

What type of mistake was there in Raffles v Wichelhaus?

Latent ambiguity; there was no agreement reached

248

Keates v The Earl of Cadogan

Silence does not give an actionable MR

249

Howard Marine v A Ogden & Sons

Capacity of barges; 1600, but only 1000; Lloyd's

250

Why was the managed in Howard Marine still liable under s.2(1) despite honestly making the statements?

No reasonable grounds for believing truth, even after checking Lloyd's

251

Lewis Averay

Pinewood studios; Richard Greene; criticism of Ingram v Little; presumption of intention to deal with person in front of them not displaced

252

What are three advantages of s.2(1) Misrepresentation Act 1967?

No special relationship needed, burden of proof falls on defendant to prove honest and reasonable belief in truth of statement AND 'fiction of fraud

253

What three cases show situations where B knew A had made a mistake as to a term of the contract?

Smith v Hughes; Hartog v Colin & Shields; Scriven Brothers & Co v King & Co

254

Leaf v International Galleries

Constable

255

Why is there a difficult relationship between written and oral contracts in cases of mistake as to identity?

Contract was void in Cundy (handkerchiefs) but not in Lewis (Pinewood)

256

What is the 'fiction of fraud'?

Liable as if FMR, without proving fraud

257

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd

How important is the statement? Professional so statement are terms

258

Why are the damages for FMR favourable?

Don't need to show loss was foreseeable and it is usually higher than other damages

259

Who formed the minority position in Shogun?

Nicholls and Millett

260

Why was the contract void in Raffles?

No consensus ad idem - even an objective test of the reasonable person would not allow them to state with certainty which sailing had been agreed

261

What is strongly inferable from the materiality of a statement?

Inducement

262

What is the effect of s.6 SoGA?

Voids the contract

263

Name at least three factors to which the courts have regard in mistake (consider Lady Hood; Great Peace; Hartog)

Seriousness of mistake, blameworthiness, knowledge etc