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Action for Misrepresentation? - Coggle Diagram
Action for Misrepresentation?
Is the statement
a term
or
a mere representation?
Lets look at the parties' intentions (CONSIDER THESE FACTORS):
Importance (of the Thing Said)
If importance of something is indicated --> we can say the parties intended the statement to be
a term
(Bannerman v White 1861) - beer hops/sulphur treatment - buyer makes note of importance of NO SULPHUR, before realising they were SULPHUR. That became a term. Term breached.
Verification ("don't quote me on that")
The seller’s statement was
a mere representation
because he suggested that the truth be verified (Ecay v Godfrey 1947) - sale of boat/seller stated "boat looks good, but go get it checked out"/ =
a mere representation
Timing (between the statement and conclusion of contract)
The more time
between the statement and the conclusion of contract = likely
a mere representation (Routledge v McKay 1954)
....
The less time
between the statement and the conclusion of the contract = likely
a term
*
Relative Skill and Knowledge of the Parties
*
(who is more adept, in relation to the statement)
Where a
representee has greater skill/knowledge
in relation to the thing said, the statement is more likely to be
a mere representation
(Oscar Chess v Williams 1957
)
Where the
representor
has greater skill/knowledge in relation to the thing said, the statement is more likely to be
a term.
(Dick Bentley v Harold Smith 1965) + (Esso v Mardon 1976)
So, I've decided that the statement is
a term
Action for Breach of Contract ___
So I've decided the statement is
a mere representation
A) Untrue statement of Fact?
No, its a
statement of opinion
(Bisset v Wilkinson 1927) - "land would support 2,000 sheep" = an opinion b/c he actually never farmed sheep LOL
NO CLAIM FOR MISREPRESENTATION
Its a
statement of intention
(Edington v Fitzmaurice 1885) - company told investors it was looking for investment to expand the company (statement of intention). In fact, investment was meant for paying off debt. This concealed an implied statement of fact
COULD have ACTIONABLE MISREPRESENTATION lawsuit
Duty to Disclose Changes In Circumstances / Continuing Representation
(With v O'Flanagan 1936 , Spice Girls v Aprillia 2002) -
can make an untrue statement of fact by conduct
that continually represents the initial contract.
Half-Truth?
Could amount to an untrue statement of fact
(Nottingham Patent Brick v Butler 1885) -
"I'm unsure
if there is a restrictive covenant. This was true, but really he didn't even read the document. So, "I'm not sure" was
conveying something else entirely
(that he looked over the document).
COULD have ACTIONABLE MISREPRESENTATION lawsuit
YES to BOTH
What Type of Misrepresentation?
B) Induces the representee to enter into the contract (
INDUCEMENT)
?
Can the REPRESENTOR show any of:
a) the representee is aware of the untruth (does not include
merely giving them the opportunity to discover the untruth
- Redgrave v Hurd 1881. Also does not include
having a suspicion of the untruth
- Zurich Insurance v Hayward 2016).
**
MUST SHOW AWARENESS OF THE UNTRUTH
**
b) the representee relied on other inducement in order to enter the contract (
Atwood v Small 1838)
- third-party appraiser gave the green light, and representee relied on this
c) the representee was not aware of the misrepresentation/conduct (Horsfal v Thomas 1868 - the fixing of the gun.. representee unaware of this, didn't inspect gun... therefore no inducement) -
can’t induce someone into something their unaware of
d) the representee would have still entered the contract even if aware of the untruth -
The Lucy 1983
- charterers/sub-charterers, no inducement (cuz charterers were able to show that although there was confusion on the terms, the sub-charterers would still have entered the contract)
Is
the statement
a misrepresentation?