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Misrepresentation - Coggle Diagram

- - - - More likely to be a term if:
        
        it is very important to one party
        
        Made by someone with special skill or knowledge
        
        Close it is made to the time of the contract formation
      - More likely to be a representation:
        
        Verification
        
        Reduction of the contract in writing
    - - 'May be true without beinf entirely correct, provided it is substantially correct and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimants to enter into the contracts' - Rix J, Avon Insurance Plc v Swire Fraser Ltd [2000] 1 All ER (Comm) 573.
      - Unambiguous: Reasonable construction
    - - Who is the statement maker? are they attracting liability in what they said?
        
        Do they have specialist knowledge? - Esso v Mardon [1976] EWCA Civ 4
        
        Are they in a better position to know the truth? - Smith v Land and House Property Corporation (1884) 28 ChD 7
      - What are they saying? or not saying?
        
        Silence is not a statement of fact - no duty of disclosure
        
        Contrast with European Draft Common Frame of Reference Art || 3:101 - general duty of disclosure applying to all contracts made by a business for the supply of goods and other assets to a consumer or a business
        
        Caveat Emptor principle - falls on the buyer to conduct investigations
        
        Exceptions
        
        Half Truths - Dimmock v Hallett (1866) LR 2 Ch App 21
        
        Change in circumstances (or continuing representation) - With v O'Flanagan [1936] Ch 575
        
        Contracts of 'utmost good faith' (unberrimae fidei)
        
        Keates v The Earl of Cadogan (1851) 10 CB 591
        
        Sales talk would not usually be a statement of fact - Dimmock v Hallet (1866) LR 2 Ch App 21
      - Conduct can amount to misrepresentation
      - Statement of future intention or a change to intention is not usually a statement of fact unless there is no intention at the time
      - Statement fo law can now amount to a statement of fact
    - - Representation must be material - would influence a reasonable person - Lord Mustill, Pan Atlantic Co. Ltd v Pine Top Insurance Co Ltd [1995] 1 AC 501
      - Must be known to the representee - Horsfall v Thomas (1862) 2 F&F 785
      - Must be intended to be acted upon - Peek v Gurney (1873) LR 6 HL 377
      - Must be acted upon
      - Material and reliance
        
        Materiality - objective - would the statement influence a reasonable person? - Pan Atlantic
        
        Relaince - misrepresentation must be one of the reasons for entering the contract - JEB Fasteners v Mark Bloom [1983] 1 AER 583 CA - but does not need to be the sole reason
        
        if C conducts their own investigation, they may have held to have relied on their own judgement - Attwood v Small [1838] UKHL J60
        
        But, there is not duty to investigate - Redgrave v Hurd (1881) 20 Ch D 1
    - - Fraudulent misrepresentation
      - Negligent misstatement (Tort)
      - Negligent misrepresentation under MA 1967
      - Innocent misrepresentation under MA 1967
    - - 1. Rescission
        
        Equitable remedy - contract is set aside, parties are restores to position they were in prior
        
        May be lost
        
        Contract is affirmed by representee after discovering state of affairs - Long v Lloyd [1958] 1 WLR 753
        
        Lapse of time - fraud, time runs from date of discovery - negligence, time runs from date of contract - Leaf v International Galleries [1950] 1 KB 86
        
        Restitution not possible, e.g. subject matter changed
        
        Bona fide third party purchaser
      - 2. Damages
        
        Fraud
        
        recovery for all direct loss incurred as a result of fraud misrep, regardless of foreseeability - Doyle v Olby (Ironmongers) [1969] 2 WB 158
        
        Includes consequential loss from transaction - Smith New Court Securities v Scrimgeour Vickers [1996] UKHL 3
        
        Negligent misrepresentation under s2(1) MA 1967
        
        Royscot Trust Ltd v Rogerson [1991] 2 QB 297
        
        Innocent misrepresentation (s2(2)) MA 1967
        
        Damages in lieu of res
      - Remedies available are determined by first establishing the 'type' of misrepresentation (relevant cause of action:)