Misrepresentation
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
THE MODERN LAW of CONTRACT, Eighth Edition
The Modern Law of Contract Eighth Edition Written by a leading author and lecturer with over thirty years’ experience teaching and examining contract law, The Modern Law of Contract continues to equip students with a clear and logical introduction to contract law. Exploring all of the recent developments and case decisions in the field of contract law, it combines a meticulous examination of authorities and commentar- ies with a modern contextual approach. An ideal accessible introduction to con- tract law for students coming to legal study for the first time, this leading textbook offers straightforward explanations of all of the topics found on an undergraduate or GDL contract law module. At the same time, coverage of a variety of theoretical approaches: economic, sociological and empirical encourages reflective thought and critical analysis. New features include: boxed chapter summaries, which help to consolidate learning and understanding; additional ‘For thought’ think points throughout the text where students are asked to consider ‘what if’ scenarios; new diagrams to illustrate principles and facilitate the understanding of concepts and interrelationships; new Key Case close-ups designed to help students identify key cases within contract law and improve their understanding of the facts and context of each case; a Companion Website with half-yearly updates; chapter-by-chapter Multiple Choice Questions; a Flashcard glossary; contract law skills advice; PowerPoint slides of the diagrams within the book; and sample essay questions; new, attractive two-colour text design to improve presentation and help consolidate learning. Clearly written and easy to use, this book enables undergraduate students of contract law to fully engage with the topic and gain a profound understanding of this pivotal area. -
The Negotiation Stage
Part I The negotiation stage M02_HALS8786_02_SE_C02.indd 17 7/19/12 3:47 PM M02_HALS8786_02_SE_C02.indd 18 7/19/12 3:47 PM 2 Negotiating the contract Introduction Lord Atkin once remarked that: ‘Businessmen habitually . trust to luck or the good faith of the other party . .’.1 This comment2 provides more than an insight into the motivations of businessmen. It also implicitly acknowledges a limitation of the common law in policing the activities of contractors: the law no more ensures the good faith of your contractual partner than it guarantees your good fortune in business dealings. However, this might not be an accurate description of the purpose of the law relating to pre-contractual negotiations. In an important judgment that was notable for its attempt to place the legal principles under discussion in a broader doctrinal and comparative context Bingham LJ in the Court of Appeal observed that:3 In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith . It is in essence a principle of fair and open dealing . English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions to demonstrated problems of unfairness. This judgment makes it clear that the gap between civil and common-law jurisdictions is exaggerated by observations at too high a level of generality. While it is true to say that the common law does not explicitly adopt a principle of good faith, it is as obviously untrue to say that the common law encourages bad faith. -
Misrepresentation
5 – MISREPRESENTATION Contract law does not have specific principle requiring disclosure, but there are certain cases where it is needed. Where there is misrepresentation, non-disclosure or mistake, the possible responses are: 1. The contract is void ab initio 2. The contract is voidable via rescission 3. The contract can be rectified to correct the mistake (see previous supervisions) 4. Damages can be awarded to remedy the wrong Where the issue is a statement made in course of negotiations, the remedy will depend on classification of the statement: 1. Contractual term (a ‘warranty’) – damages for breach of contract, possibly termination for breach (depending on nature of term) 2. Misrepresentation – rescission (subject to bars), and potential tort or Misrepresentation Act 1967 damages At one point, misrepresentation could be ground for rescission and damages were available only under the tort of deceit if there was fraud; no damages for innocent misrep. In Hedley Byrne v Heller (1964), HOL made clear breach of the DOC to avoid negligent misstatement could give rise to damages. 1967 Misrepresentation Act extended damages under s 2(1) to the case of misrepresentation inducing a contract where the representor cannot prove absence of negligence or bad faith. This made inference of collateral contract less necessary, although still necessary because representations as to future are harder to fit in scope of Act. Categorising statements made in negotiations Mere puffs These have no legal effect, they mean nothing - Dimmock v Hallett (1866) -
Misrepresentation
Misrepresentation Principle Case (1) A false statement Exception to a false statement: if a true representation is falsified by later events, the With v O’Flanagan [1936] Ch 575 change in circumstances should be communicated Dimmock v Hallett (1866) LR 2 Ch App 21; Implied representations: half-truths lead to Spice Girls Ltd v Aprilia World Service BV actionable misrepresentation [2002] EWCA Civ 15 (2) Existing or past fact An opinion is not usually a statement of fact Bisset v Wilkinson [1927] AC 177; and therefore not an actionable Hummingbird Motors v Hobbs [1986] RTR 726 misrepresentation An opinion which is either not held or could not Smith v Land and House Property Corporation be held by a reasonable person with the (1884) 28 Ch D 7 speaker’s knowledge is a statement of fact If there is an unequal skill, knowledge, and Esso Petroleum Co Ltd v Mardon [1976] 2 All bargaining strength, there is misrepresentation ER 5 An actionable misrepresentation is a false Edgington v Fitzmaurice (1885) 29 Ch D 459; statement of existing fact (i.e. statement of East v Maurer [1991] 1 WLR 461 intention) Kleinwort Benson v Lincoln CC [1999] 2 AC Misrepresentations of law amount to actionable 349; misrepresentations Pankhania v Hackney LBC [2002] EWHC 2441 (Ch) (3) Made by one party to another If a misrepresentation is made to a third party and, objectively, it is likely that the Cramaso LLP v Ogilvie-Grant [2014] AC 1093 misrepresentation will be passed to the other contracting party, it will be actionable (4) Induces the contract The false statement -
A Casebook on Contract
Contents Preface ix Table of Cases xxv Table of Legislation xlv PART ONE: THE FORMATION OF A CONTRACT 1. OFFER AND ACCEPTANCE 3 1. Introduction 3 (1) What is a Contract? 3 (2) Offer and Acceptance 4 2. Offers and Invitations to Treat 4 (1) Two General Illustrative Cases 5 Harvey v Facey 5 Gibson v Manchester City Council 5 (2) Display of Goods for Sale 7 Fisher v Bell 7 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd 8 (3) Advertisements 10 Partridge v Crittenden 10 Carlill v Carbolic Smoke Ball Company 11 (4) Auction Sales 16 Barry v Davies 16 (5) Tenders 19 Spencer v Harding 19 Harvela Investments Ltd v Royal Trust Company of Canada (CI) Ltd 20 Blackpool and Fylde Aeroclub Ltd v Blackpool Borough Council 22 3. Acceptance 26 (1) Acceptance by Conduct 26 Brogden v Metropolitan Railway Co 26 (2) 'Battle of the Forms' 27 Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd 27 (3) Communication of Acceptance 33 (a) The General Rule: Acceptance must be Received by Offeror 33 Entores Ltd v Miles Far East Corporation 33 Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 35 (b) Acceptance by Post 37 xii Contents Household Fire and Carriage Accident Insurance Co Ltd v Grant 37 Holwell Securities Ltd v Hughes 39 (c) Waiver by Offeror of the Need for Communication of Acceptance 41 Felt house v Bindley 41 (4) Prescribed Mode of Acceptance 43 Manchester Diocesan Council for Education v Commercial and General Investments Ltd 43 (5) Acceptance in Ignorance of an Offer 45 R v Clarke 45 (6) Acceptance in Unilateral Contracts 47 Errington v Errington 47 4. -
Law for Non-Law Students, Third Edition
LAW FOR NON-LAW STUDENTS Third Edition This book is supported by an online subscription to give you access to periodic updates. To gain access to this area, you need to enter the unique password printed below. The password is protected and your free subscription to the site is valid for 12 months from the date of registration. 1 Go to http://www.cavendishpublishing.com. 2 If you are a registered user of the Cavendish website, log in as usual (with your email address and your personal password). Then click the Law for Non-Law Students button on the home page. You will now see a box next to Law for Non-Law Students. Enter the unique passcode printed below. Once you’ve done that, the word ‘Enter’ appears. Click Enter and that’s where you’ll find your updates. 3 If you are not yet a registered user of the Cavendish website, you will first need to register. Registration is completely free. Click on the ‘Registration’ button at the top of your screen, then type in your email address and a password. You should use something personal and memorable to you. Then click the Law for Non-Law Students button on the home page. You will now see a box next to Law for Non-Law Students. Enter the unique passcode printed below. Once you’ve done that, the word ‘Enter’ appears. Click Enter and that’s where you’ll find your updates 4 Cavendish will email you each time updates are uploaded. All you need to do to obtain any past or future updates is to go to http:// www.cavendishpublishing.com and follow the instructions in point 2 above. -
Burrows-3Rd Edn.Vp
Contents Acknowledgements vii Preface ix Table of Cases xxv Table of Legislation xlix PART ONE: THE FORMATION OF A CONTRACT 1. OFFER AND ACCEPTANCE 3 1. Introduction 3 (1) What is a Contract? 3 (2) Offer and Acceptance 4 2. Offers and Invitations to Treat 4 (1) Two General Illustrative Cases 5 Harvey v Facey 5 Gibson v Manchester City Council 5 (2) Display of Goods for Sale 7 Fisher v Bell 7 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd 8 (3) Advertisements 10 Partridge v Crittenden 10 Carlill v Carbolic Smoke Ball Company 11 (4) Auction Sales http://www.pbookshop.com 16 Barry v Davies 16 (5) Tenders 19 Spencer v Harding 19 Harvela Investments Ltd v Royal Trust Company of Canada (CI) Ltd 20 Blackpool and Fylde Aeroclub Ltd v Blackpool Borough Council 22 3. Acceptance 26 (1) Acceptance by Conduct 26 Brogden v Metropolitan Railway Co 26 (2) ‘Battle of the Forms’ 27 Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd 27 (3) Communication of Acceptance 33 (a) The General Rule: Acceptance must be Received by Offeror 33 Entores Ltd v Miles Far East Corporation 33 Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 36 xii Contents (b) Acceptance by Post 38 Household Fire and Carriage Accident Insurance Co Ltd v Grant 38 Holwell Securities Ltd v Hughes 40 (c) Waiver by Offeror of the Need for Communication of Acceptance 42 Felthouse v Bindley 42 (4) Prescribed Mode of Acceptance 44 Manchester Diocesan Council for Education v Commercial and General Investments Ltd 44 (5) Acceptance in Ignorance of an Offer 45 R v Clarke 45 (6) Acceptance in Unilateral Contracts 48 Errington v Errington 48 Soulsbury v Soulsbury 49 4. -
Sourcebook on Contract Law, Second Edition
SOURCEBOOK ON CONTRACT LAW Second Edition CP Cavendish Publishing Limited London • Sydney SOURCEBOOK ON CONTRACT LAW Second Edition David Oughton Professor of Commercial Law De Montfort University, Leicester Martin Davis Principal Lecturer in Law De Montfort University, Leicester CP Cavendish Publishing Limited London • Sydney Second edition first published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com © Oughton, D and Davis, M 2000 First edition 1996 Second edition 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing in Publication Data Oughton, DW Sourcebook on contract law – 2nd ed – (Sourcebook series) 1 Contracts – England 2 Contracts – Wales I Title II Davis, Martin, 1949– 346.4'2'02 ISBN 1 85941 584 9 Printed and bound in Great Britain ACKNOWLEDGMENTS The publishers and authors wish to thank the following publishers, authors and copyright holders for their permission to reprint materials from the books and periodicals listed: Basil Blackwell Publishers Ltd for extracts from Beale, H (with Dugdale, A), ‘Contracts between businessmen: planning and the use of contractual remedies’ (1975) 2 British Journal of Law and Society 45. -
Misrepresentation
Vitiating Factors: Misrepresentation Fraud à a form of misrepresentation Misrepresentation: One party enters into a contract on the basis of something that another party has told them, and this is not in fact true. From the outset, distinguish between misrepresentation (false statement of fact/law that induces a contract) and contractual term. Difference between misrepresentation and warranty (a contractual term): Warranty a. A term in the contract between the parties b. A separate contract between the parties Leading decision on difference between representations and warranties: Heilbut, Symons & Co v Buckleton [1913] If you give a contractual promise a warranty, whether it is a term of an existing contract or forms the basis of a separate contract, and it is in fact not good, then the contract is broken and you can seek damages. If however, the statement is merely a representation, if it’s not true you don’t get damages for breach of contract. At most you can establish that the representation is actionable as a misrepresentation. Lord Moulton on warranties: “animus contrahendi (intention to contract)” Þ Importance of the statement, the more important the statement the more likely for it to be a contractual form. Þ Reliance put on this statement by the parties. Þ Relative knowledge of the two parties, where a more experience + knowledgeable party makes a statement that he knows the other is relying upon, it is more likely for this to be a contractual term. Oscar Chess Ltd v Williams [1957] Lord Denning: How you determine whether something is a warranty or a representation is done on an objective basis, doesn’t look into the minds of the parties but decides whether or not it would appear that they intended the statement to be a warranty.