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Exam cards - Contract > Misrep > Flashcards

Flashcards in Misrep Deck (55):
1

Mnemomic for structure?

I Poured Coffee Carelessly Risking Castration

2

Poole's definition of a misrepresentation

An unambiguous false statement of fact made to the claimant which induces the claimant to enter into the contract with the statement maker

3

Dimmock v Hallet

A mere puff is not actionable

4

Carlill v Carbollic Smokeball

Adverts are generally mere puff, though this wasn't

5

J Evans v A Merzario

A misrepresentation can also be a term of the contract though this is beyond the remit of the question

6

McInerny v Lloyds

Ambiguous so not misrepresentation

7

Avon v Swire

Substantially false

8

Horsfall v Thomas

Statement must be made to claimant so they are acting upon it

9

Commercial Banking v RH Brown

Statement addressed to a 3rd party can be an actionable misrep if the 3rd party is certainly going to pass it on (authority fo statement made to claimant)

10

Keates v Earl of Cadogan

No general duty of disclosure
Silence in general is not a statement of fact so is not actionable

11

Pankhania v Hackney

Statement of law is actionable

12

Gordon v Selico

Conduct is actionable despite silence

13

SPice Girls v Aprilla

Conduct is actionable despite silence

14

Bisset v Wilkinson

Statement of lay opinion is not actionable

15

Smith v Land Corp

Statement with greater knowledge is actionable

16

Esso v Marden

Statement of an expert is actionable

17

Wales v Wadham

Statement of future intent is not actionable and there is no duty to inform the other party of a change of intent

18

Edginton v Fitzmaurice

Future intention is actionable if there was never any real intention

19

Sykes v Taylor-Rose

In some circumstances there will be a duty to disclose information. E.g. buying a house

20

Dimmock v Hallet (2)

A half truth is actionable if it is misleading

21

With v O'Flannagan

A continuing representation is actionable

22

Hood v West End Motors

Silence is actionable in contracts of the utmost good faith where there is a duty to disclose a fact (Land/insurance)

23

Pan Atlantic v Pine Top

A statement is material if it would induce the reasonable man. This presumption can be rebutted

24

Smith v Chadwick

Where the reasonable man would be induced there is a presumption that the claimant is induced, unless this presumption is rebutted with evidence that thy were not subjectively induced

25

Museprime v Adhill

Where no inducement presumed, this can be rebutted by evidence showing that the claimant was induced

26

Redgrave v Hurd

1. No general duty of investigation
2. No inducement where the claimant knows the statement to be untrue

27

Attwood v Small

No inducement if you rely on your own investigations

28

Edginton v Fitzmaurice (2)

If misrepresentation is a factor at all then the statement is actionable

29

JEB Fastners v Mark Bloom

The misrep must have been A factor, does not have to be the only factor

30

S pearson v Dublin Corp

Investigation irrelevant in fraudulent misrepresentations

31

Derry v Peek

A fraudulent misrepresentation is made;
- Knowing the statement is untrue
- Without belief in the truth
- Reckless to the truth

32

What remedies are available for fraudulent misrepresentation?

- Damages
- Indemnity
- Rescission

33

Standard chartered banking v Pakistan National Shipping

Contributory negligence not available under fraudulent misrepresentation

34

Doyle v OLby

Damages can be claimed for all loss flowing from the transaction, provided not too remote

35

East v Maurer

Loss of profits can be claimed, compared to hypothetical ideal

36

Chappel v Downs c/f Acquitane v Laporte

1. If any profit made lost profit cannot be claimed
2. If you can prove you would have made a substantially greater profit this is claimable

37

Thomas Witter v TBP

Fraudulent misrep if you are reckless to the truth - flagrant disregard for the truth

38

New SMith Court v Scrimgeour Vickers

Damages reduced by benefit acrrued to the claimant

39

Erlanger v New Sombrero

Court will do what is practically just - Relevant for rescission

40

Royscott v Rodgerson

Fiction of fraud. Negligent misrepresentation treated the same as fraudulent misrepresentation

41

Negligent misrepresentation

S2(1) MA 1967 - False statement of fact which the defendant believes but is unreasonable to believe - Howard Marine v Ogden

42

What remedies are available for misrepresentation?

All of them; Rescission, damages, damages in lieu of rescission

43

Damages for negligent misrepresentation

Royscott v Rodgerson - treated the same as fraudulent misrep other than that only damages flowing from particular misstatement are claimable

44

Poole (obiter)

Unlikely to get loss of profits in negligent misrepresentation

45

Damages in lieu of rescission under negligent misrepresentation

Zanzibar v British Aerospace - If there are bars to rescission then damages in lieu of rescission are not available (current state of law)
Thomas v TBP - If rescission ever available then damages in lieu of rescission can be claimed

46

Contributory negligence in negligent misrepresentation

Gran Gelato - Yes can claim contrib neg if concurrent claim in tort (Vesta v Butcher)
Royscott v Rodgerson - No cannot claim contrib neg. (Grey area)

47

Innocent misrepresentation

S2(1) MA 1967Where a false statement of fact is made, but it is genuinely believed, and it is reasonable to believe it (objective test)

48

Remedies under innocent misrep

Rescission, damages in lieu of rescission, indemnity (most relevant here)

49

Whittington v Seale - Hayne

Business tax indemnified for turkey farm

50

Negligent misstatement

Where a 3rd party makes a misrepresentation

51

Hedley Byrne v Heller

Test for negligent misstatement;
- Foreseeable reliance
- Proximity
- Fair just and reasonable

52

What remedies are available for negligent misstatement?

Only damages which must be foreseeable (Wagonmound) (tortious measure)

53

What are the bars to recission?

Third party rights (Phillips v Brooks)
Affirmation (Long v Lloyd)
Impossibility (Clarke v Dickinson)
Lapse of time (Leaf v International Galleries)

54

UCTA in relation to exemption clauses

S3 - Can only exclude liability for a misrepresentation as far as is reasonable (S11)

55

S11 - UCTA 1977 - Reasonableness test

- Fair and reasonable on circumstances
- At time contract entered into
- BoP is on party seeking to enforce term