misrepresentation

Question 1

what is misrepresentation

Answer 1

a false statement of fact made by one party to another during negotiations whihc was intended to and did succeed (induce) to the party to enter the contract

Question 2

what do misrep make contracts

Answer 2

voidable in equity

Question 3

a misstatement amounts to a misrep only if it is a statement of fact and not

Answer 3

a mere puff
a statement of opinion (bissett v wilkinson)
a statement of intention (edgington v fitzmaurice)

Question 4

silence does not usually amount to misrep although in some situations a failure to speak can lead to liability -

Answer 4

change of circumstances (With v O’Flanagan)
Half truths (dimmock v hallett)
contracts with the utmost good fath (uberrimae fiddei)
fiduciary relationships

Question 5

can conduct amount to misrep

Answer 5

yes - spice girls ltd v aprill world services

Question 6

how is a misstatement a misrep

Answer 6

only if it induces the person to whom it is made to enter into a contract - this cannot be so if they do not rely on the statemetn

Question 7

what must misrep me

Answer 7

material - important enough to influence a reasonable person - objective test applied (downs v chappell)

Question 8

types of mis rep -

Answer 8

fraudulent, innocent and negligent

Question 9

fraudulent misrep? what case

Answer 9

derry v peek -
decided that a false statemetn is fradulent at common law only if it was made
knowingly, or
without belief in its truth or
recklessly, not caring whether it be true or false

remedies - misled party could apply for rescission and sue for damages

damages - awarded for all damage that direclty flowed from the transaction and such damage need not be forseeable (doyle v olby)

Question 10

innocent misrep?

Answer 10

person makes false statement which they reaonsbaly believe to be true
remedy - no remedy available
rescission - at equity this is available
damages - under s2(2) misrep act
only available if the misrepresentee has not lost their entitlement to rescission

Question 11

negligent misrep?

Answer 11

Misrepresentation act 1967
Howard marine dredging v ogden sons 
remedies - rescission
damages- measure based on that for fraud
Royscott trust ltd v rogerson

Question 12

right to rescind?

Answer 12

since contract is devalued by misrep, the appropriate remedy is that th eparties should be put back in the position that thy were before they entered the contract

Question 13

what is rescission

Answer 13

an equitable remedy and therefore discretionary - subject to equitable bars and may not be available

Question 14

rescission is not avaiable in the following

Answer 14

restitution impossible
contract affirmed by the misled party AFTER they had knowledge of the misrep (Long v LLoyd)
third parties have aquired rights (lewis v averay)
if there has been a delay (leaf v international galleries)