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Flashcards in Misrepresentation and Misstatement Deck (31)
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Bisset v Wilkinson

Statements of opinion or belief - expressing an opinion or belief can not be actionable as misrep, it must have purported to be fact

1

Smith v Land and House Property Corporation

Although prima facie the plaintiffs' statements concerning a tenant appeared to be an opinion, their expression involved the implied assertion of a factual basis for its making [of the contract]

2

Edgington v Fitzmaurice

Statements of future intention - this was fraudulent when claiming to do one thing with the money when it was actually used to pay creditor's, however, it is difficult to extend this ratio beyond wilful lies, i.e. fraudulent misrep -- generally statements of future conduct are not misrep

3

Pankhania v Hackney Borough Council

The HL in Kleinwort abolished the rule that a mistake of law is not actionable - applied here - difficult to distinguish though between misrep of law and misrep of fact cf. Solle v Butcher

4

Hands v Simpson Fawcett

Generally, silence cannot amount to misrep

5

Tapp v Lee

A statement which is half true may be actionable for misrep

6

Keates v The Earl of Cadogan

The D had not given any warranty or representation concerning the habitability of the house and it therefore did not amount to deceit - this fits well with Smith v Hughes and the oats

7

With v O'Flanagan

Where the D has done something that creates a positive impression in the mind of the other, and it is later rendered misleading in changing circumstances, this will amount to misrep - a representation continues until the conclusion of the contract

8

Dimmock v Hallett

Statements that are technically true can be misrep if they withhold information, or, what they imply is false

9

Spice Girls v Aprilia World Service

Conduct can have the same effect as Dimmock, even though what was represented was technically true, there was an implied assumption that all 5 members of the Spice Girls would be present and withholding Geri's departure amounted to misrep

10

Museprime Properties v Adhill Properties

Where a representation is not material, it is suggested that the probative burden lies on the representee to show that he did in fact rely on it

11

Attwood v Small

Reliance - The buyers had relied on the statements made by their advisors, not the contracting party's and it was therefore not actionable --- materiality and reliance is the reasonable man test

12

Redgrave v Hurd

Even though documents were shown proving the P's misrep, the D was under not duty to inspect them and was free to instead rely on the P's representations, which were false - the rep were material and the D had relied upon it - NB contributory negligence now, however

13

Smith v Chadwick

If C was unaware of the misrep at the time of the contract or was aware but it can be proved that it clearly did not affect his judgment then no liability

14

Hedley Byrne & Co v Heller & Partners

Enlarged a duty of care when providing advice, which a party relies upon to its subsequent detriment, when a 'special relationship' occurs - unlike misrep statements of opinion, belief, etc can be negligent misstatements

15

Caparo v Dickman

No duty of care as it was foreseeable but there was insufficient proximity - negligent words are different from negligent actions and indeterminate liability needs to be avoided

16

Henderson v Merrett Syndicates

The HB principle applied to direct and indirect relationships - a disclaimer will avoid responsibility and an assumption of responsibility may well not be found where information or advice is given in informal circumstances

17

McCulllough v Lane Fox and Partners

Affirmed HB - there was a negligent misstatement but a disclaimer prevented the claim

18

Derry v Peek

Fraudulent misrep - the directors had honestly but mistakenly assumed that they would gain consent, this was reprehensible but not dishonest - Lord Herschell states that nothing short of proof of fraud will suffice - it must be knowingly made, or without belief in its truth, or recklessly as to its correctness

19

Doyle v Olby (Ironmongers)

Damages for fraudulent misrep - it is not merely to 'make good the representation' as this was not limited in representations made in deceit - the only limit on recovery is that the loss must be shown to have been caused by the fraudulently induced transaction -- very high probative burden for fraudulent misrep

20

East v Maurer

Damages will be awarded for fraudulent misrep to represent the value of the hypothetical opportunity lost as a result of the plaintiff tying up money and time in the business instead of pursuing a different venture - damages will NOT be made for the profits which would have been made without the misrep - reliance loss not expectation loss

21

Howard Marine & Dredging Co v A Ogden & Sons
Hedley Byrne

Confirmation of negligent misrep - the duty passes, as soon as a misrepresentation is proved, to the representor to prove that he had reasonable ground to believe the facts he presented -

Test of remoteness is reasonable foreseeability

22

Royscot Trust v Rogerson

The loss pleaded by the finance company was not too remote - this was fraudulent misrep - negligent misrep was unlimited like fraudulent misrep

23

Gran Gelato v Richcliff

Contributory negligence means that damages for fraudulent misrep can be reduced under s2(1)

24

Whittington v Seale-Hayne

No damages for innocent misrep but an indemnity can be awarded for certain costs - loss of profits, value of stock lost, removal costs, medical expenses, rent and rates and cost of repairs ordered by council

25

Car and Universal Finance v Caldwell

Informal rescission of a contract (without court) - he had done this by calling the police and the AA, which was sufficient to rescind and prevent transfer of title to the car to the bona fide purchaser for value

26

William Sindall v Cambridgeshire CC

Factors for rescission - a. the importance in the overall contract, b. the loss that would be caused by the misrep should the contract be upheld and c. the loss which would be caused by the rescission - Lord Hoffman

27

Long v Lloyd
Vigers v Pike

1. Affirmation - election or not
2. Lapse of time - fraudulent (from fraud), non-f (from beg. of cont.)
3. Third party rights - bona fide purchaser for value - no resci
4. Restitution in integrum - major alteration of goods will mean that they cannot be returned - equitable jurisdiction to give money

28

Cremdean v Nash

In contrast with Overbrooke v Glencombe, the clause here claimed that they were not representations at, whereas in O v C, it merely limited responsibility for agents' representations - that was okay

29

Contractual exclusions

Fraudulent misrep - principal's liability for fraud cannot be excluded
Non-fraudulent misrep - exclusion must be reasonable cf. s3 MRA