This preview has intentionally blurred sections. Sign up to view the full version.View Full Document
Unformatted text preview: Misrepresentation (Mugger Notes) It is important to first ascertain if Y’s statement is a term of the contract or a representation because it entails different remedies. If Y’s statement was a term: a condition would allow X to sue for damages and rescind the contract; a warranty would allow X to sue for damages. The quantum of damages between a breach of a term and misrepresentation also differs because damages for a breach of a term tends to put the innocent party in the position where the contract has been fully performed (expectation loss) ; Remedies for misrepresentation are in tort and tends to put the innocent party in the position where the contract has not been made . USE TERMS PF TO DETERMINE IF THE STATEMENT WAS A TERM. Although the statement is not a term incorporated into the contract, the statement has to be analysed to determine if it is a representation where if it is X is entitled to remedies of misrepresentation. An operative misrepresentation consists in a (1) false statement of (2) existing or past fact made by one party (the ‘misrepresentor’) before or at the time of making the contract, which is (3) addressed to the other party (the ‘misrepresentee’) and which (4) induces the other party to enter into the contract. Tan Chin Seng v. Raffles Town Club For Y’s statement to be a misrepresentation, it cannot be ambiguous unless Y intended to convey a false meaning through the ambiguity, knowing that X will understand it in that way. (1) False statement i) Silence Y’s silence cannot be a misrepresentation. Mere Silence does not constitute misrepresentation, except in situations of good faith, contracts uberrimae fidei (eg. Insurance policies), where the parties are in a fiduciary relationship . There must be some positive conduct to actively mislead the other party. A nod, a wink, or a nudge may suffice as active conduct. Walters v Morgan ii) Half-Truths Y’s statement, a half-truth, can be a false Statement if it distorts the overall picture given to the innocent party. Dimmock v Hallett Section1(a) of the Misrepresentation Act 1967 allows one to sue for negligent representation and Section 2(1) allows for damages for negligent misrepresentations. Therefore X may sue for damages from Y for Y’s negligent misrepresentation. iii) Continuing Representation Y’s statement, truthful when made , is a false statement because it was rendered false by the changing circumstances before the contract is entered into. With v O’Flanagan if a representation is made which was true at the time but later becomes untrue there may be a duty to correct it: Spice Girls Ltd v Aprilia World Service BV (2002) E.M.L.R. 27.; 1 iv) Active Concealment Y’s series of conduct indicated _________ but yet Y still ___________. This active concealment could constitute misrepresentation. Spice Girls Ltd v. Aprila However, Y’s conduct constitutes/ does not constitute a false statement; Y’s concealment was/was not a deciding factor in misleading the representee. Horsfall v Thomas; not a deciding factor in misleading the representee....
View Full Document
- Spring '11
- Misrepresentation in English law