misrepresentation

Question 1

what is a vitiating factor?

Answer 1

something that makes the contract void (not legally binding) so the contract is not legally binding

Question 2

what is a misrepresentation?

Answer 2

a false statement of material fact made by a party to the contract that induces the other party to enter the contract

Question 3

what are the 3 types of misrep?

Answer 3

1. innocent misrep
2. negligent misrep
3. fraudulent misrep

Question 4

where is the law relating to misrep found?

Answer 4

common law and The Misrepresentation Act 1967

Question 5

what are the key elements for misrep?

Answer 5

1. a false/untrue statement
2. untrue/statement of material fact
3. made by a party to the contract
4. which induces the other party to enter the contract

Question 6

rule with silence and misrep?

Answer 6

mere silence will not usually amount to a false statement but can be a misrep only if there is partial revelation/half truth or you are legally obliged to declare everything

Question 7

case for silences?

Answer 7

Fletcher v Krell
Tate v Williamson

Question 8

what is subsequent falsity with a case?

Answer 8

once a statement has been made, even if it was true when made, it can become a misrepresentation if it becomes false before the contract is made. A person is therefore obliged to correct information where the situation has changed
With v O’Flannagan

Question 9

case for partial revelation/half truth?

Answer 9

Dimmock v Hallett

Question 10

rule with contracts requiring upmost good faith and case?

Answer 10

Where a contract is a contract of ‘utmost good faith’ then all material facts must be disclosed whether asked about or not - this is typical of contracts of insurance
Lambert v Co-Op Insurance Society

Question 11

what does the Consumer Insurance (Disclosure and Representations) Act 2012 state?

Answer 11

the consumer has a duty to answer the insurer’s questions:
- honestly and
- with reasonable care (s3)

s4(1)(a) -Consumer must taking care not to make a misrepresentation which could induce the insurer to enter the contract

Question 12

case for the distinguishing fact from opinion?

Answer 12

Bisset v Wilkinson

Question 13

rule for made by a party to the contract?

Answer 13

can only be from the parties and their agents no one else

Question 14

rule and case for the misrep must induce party into contract?

Answer 14

the misrepresentation will only be actionable if it is at least one of the reasons for which the C entered the contract, It does not have to be the sole reason
2 contrasting cases =
Attwood v Small and Redgrave v Hurd

Question 15

Under the Consumer Protection (Amendment) Regulations 2014 - What is considered as misleading includes when a trader?

Answer 15

obscure presentation of consumer information will be treated as a misleading omission

Question 16

act and sections for omissions and consumers?

Answer 16

s.12 Consumer Rights Act 2015 =
- traders have to provide certain information to the consumer before the contract becomes binding.
- a change to any of this information, made before entering into the contract, or later, is not effective unless expressly agreed between the consumer and the trader

Question 17

description and case for fraudulent misrep?

Answer 17

When there is a statement which the person making the representation knows to be untrue, or is reckless as to whether or not it is true
Derry v Peek

Question 18

what are the remedies for fraudulent misrep?

Answer 18

sue for damages under tort measure and/or seek rescission of the contract in equity

Question 19

what is negligent misrep?

Answer 19

false statement made by a person who had no reasonable grounds for believing it to be true. It is not a deliberate lie, but there is nothing to suggest that the maker of the statement believed it to be true

Question 20

what are the 2 types of negligent misrep?

Answer 20

1. negligent misrepresentation at common law - Hedley Byrne & Co Ltd v Heller & Partners
2. under the Misrepresentation Act 1967

Question 21

what does s2(1) of the Misrepresentation Act 1967 state and case?

Answer 21

does not require there to be a special relationship between parties as per negligent misrep at common law, all there needs to be is a misrep which results in a contract and a V who suffers loss

once V has proved a misrep the burden of proof is on the person who made the statement to prove reasonable grounds to believe his statement was true

Howard Marine v Ogden and Sons

Question 21

what are the remedies for negligent misrep?

Answer 21

rescission (terminate, puts parties back in position they were in before contract) and or damages

Question 22

what is innocent misrep and case?

Answer 22

he Misrepresentation Act s2(1) - a representation which is genuinely held on reasonable grounds and made honestly, the person making the statement always believed it to be true and there is no element of negligence in that belief
Hedley Byrne v Heller

Question 23

what are the remedies for innocent misrep?

Answer 23

rescission OR damages in lieu of rescission

Question 23

what are the bars to rescission?

Answer 23

1. the innocent party affirm/approve the contract 2. there is a lapse of time 3. the parties cannot go back to their original pre-contractual position 4. rescission would deprive an innocent 3rd party of rights acquired over the property subject of contract