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Vitiating Factors (Misrepresentation (Operative Misrepresentation…
Vitiating Factors
Misrepresentation
Operative Misrepresentation
Elements of Misrep
Statement of Fact
Representation by Conduct
Express Representations
Spoken or Written (Most obvious) But can also be thru a picture or any visual etcl
Implied Representations
Silence
Addressed to the Other Party
Actual Inducement
Materiality
Ambiguity and Falsity
Types of Misrepresentations
Negligent
with no reasonable ground to believe it is true
Negligence at common law
Measure of damages
Burden of proof
Innocent
honestly
and with reason to believe it is true
Fradulent
Statement made
not believing it to be true
recklessly, not caring if it is true or not
knowing it is untrue
Representation as a Term
Rescission
Exclusion of Liability
Economic Duress, Undue Influence and Unconscionability
Economic Duress
Basis for Intervention
General Principles
Sufficient Pressure
independent advice
took steps to avoid it
protested in a timely manner
acted reasonably in taking the other party’s threats seriously
alternative course of action
Illegitimacy
1) Nature of the Pressure
2) Nature of the Demand to which the pressure is applied to support
Effect
Undue Influence
Categories of Undue Influence
Actual undue influence: Class 1
Presumed Undue Influence: Class 2
Nature of parties's relationship
Class 2B
relationship that do not fall under Class 2A and with no presumption of influence
Class 2A
Relationship where presumption of influence or ascendancy arises automatically by force of law
Requirement of manifest disadvantage
Manifest Disadvantage Test
Transaction calls for explanation (Etridge test):
Rebutting the presumption
Creditors and Doctrine of "Infection"
(1) When creditor is put on inquiry
(2) Reasonable Steps
Illegality
Mistake