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Misrepresentation- is somthing false or has become false? - Coggle Diagram
Misrepresentation
- is somthing false or has become false?
Elements
False Statement of Past or Present Fact
- The statement made in contractual negotiations by the representor to the representee was false in fact, and was intended to induce the contract. DOES NOT HAVE TO PRESENT FOR NEGLIGENT MISREP
Is it false?
did the representer knew it to be false, did not care or thought it was true at the time?
is it a statement of fact
is it reasonable to be believed as a statement of fact
Oscar Chess Ltd v Williams [1957]
words and conduct
- language inducing a belief? guarantee? estimate?
JJ Savage & Sons Pty Ltd v Blankney (1970)
importance of statement
- how essential is it to the contract
Van den Esschert v Chappell [1960]
categories known not be statement of facts
Statement of Law
- the law,
UNLESS
there is authority.
Statement of Opinion
-
Bisset v Wilkinson [1927]
UNLESS
is the opinion was incorrect, reckless or not reasonable to have held - Smith v Land & House Property Corporation (1884)
Representation of future intention *
Balfour & Clark v Hollandia Ravensthorpe NL (1978)
* UNLESS
a fraudulent intention exists
Eddington v Fitzmaurice 1885
Silence
Magill v Magill 2006
UNLESS
creates a false impression (half-truth)
Dimmock v Hallett 1866
; Duty to correct false statement
Davies v London Marine Insurance Company
; Fiduciary relationship - intrinsic expectation that someone owed a higher duty to another
Tate v Williamson (1866)
Made by the representor to the representee
- question of fact. If the representation is made by a third party it will be invalid unless they are an agent representing the interests of another.
Before the contract was concluded
- the misrepresentation has be to occur before
With the intention of, and having the effect of, inducing the representee to enter into a contract with the representor
Gould v Vaggelas
If the representee does not reply upon it, there is no case
Gould v Vaggelas 1985
if the representation is made, and the contract is entered into, there is fair interference of fact that it was induced by the representee
Peek v Gurney 1873
Inference can be rebutted if the representee possessed knowledge of the falsehood and therefore there was no reliance on the inducement
if the representee had actual knowledge of the true facts
Alternativey, made it plain that whether they knew the factors true facts or not he did not reply on the representation
Holmes v Jones 1907
No Need to verify the facts unless put on notice and have an obligation to
Redgrave v Hurd (1881)
It need not be the only reason.
Edgington v Fitzmaurice 1995
Types of misrepresentation
Innocent
Proved neither fraudulent or negligent- then it is innocent misrepresentation and contract rescinded
Redgrave v Hurd 1881
Fradulent
Representer knew that the statement was fals
e
Alati v Kruger 1955
;
They did not believe it was true
Derry v Peek 1889
;
Was made recklessly
Akerhiem v De-Mare 1959
;
Half-truth/silence if information is deliberately withheld
Jenning v Zihali-Kiss 1972; Krakowski v Eurolynx Properties Ltd 1995
Negligent
Where there is a duty of are owed that has been breached.
Duty of care based on special relationship
Shaddock & Associates v Parramatta City Council 1981
is there a special relationship?
The type of information or advice
The formality of the occasion
The strength and detail of the advice
Known special skill or knowledge of the representer
Whether the representor is the only reliable source of information or advice
1 more item...
MLC Assurance v Evatt
;
Rawlinson v Brown Pty Ltd v Witham 1995
Remedies
Recession
the act of repealing/revoking/cancelling/unwinding the contract- placing parties back in pre-contractual positions.
Limitations of Recession
Has the breach been affirmed
Has too much time passed?
Reason time Leaf v International Galleries [1950]
Must be possible to compensate parties
; can the parties be restored? Were changes made that can be undone? Is it destroyed?
Brown v Smit (1924)
Reluctant to injure an innocent third party- the third party takes the benefit
Phillips v Brooks Ltd [1919]
Unless fraudulent
Alati v Krunger (1955)
partial rescission will not be allowed
Contract already performed then recession wont be allowed
Seddon v North Eastern Salt Company Ltd [1905]