A. Representation of fact
Tort of deceit
Derry v Peek 1889
1. For MisRep to be Actionable:
Representation rather than term
B. Induces the making of the contract
Know rep false or reckless w/ truth
C. Is incorrect
No remoteness test
Doyle v Olby (Ironmongers) '69
For Fraudulent MisRep
Gen'lly not actionable
Wide view?
Intent
BUT must show causation
Smith New Court v Scrimgeour '97
Reliance loss
Implies statement of fact that's false
Same damages as for
fraudulent misrep
3d Damages
Fiction of fraud
Implied facts
Under s.2(1) MisRep Act
Expert opinion
East v Maurer '91
Hedley Byne & Co v Heller & Partners '64
Consider negligent misrep in TORT
Esso Petroleum Co Ltd v Marden '76
Smith v Land & House Property Corp. 1884
Representor doesn't hold the opinion
Fraud
Incl. consequential losses
Cemp Properties v Dentsply R&D Corp '91
Bisset v Wilkinson '27
Opinion
Damages for lost opportunity
Make them preferable to rescission
1a. Statements
of fact
Lost profits
Gen'lly not actionable - viewed as opinions
Fraud
Law
NOTE:
Considered statement of fact
Foreign law
Loss necessarily suffered by reason of contract
Whittington v Seale-Hayne 1900
> Inaccurate statement of fact
Silence
Even where Good didn't know @ misrep
Leaf v Int'l Galleries '50
Clarke v Dickson 1858
Erlanger v New Sombrero Phospate Co 1878
BUT Minor adjustments allowed in equity
Restitutio in
integrum impossible
Gen'lly, material statements of fact considered to induce the contract.
Didn't know @ misrep
3a Rescission
Lapse of time
Silence distorts positive misrep
Horsfall v Thomas 1862
Representee admits it doesn't induce
Bars to
Rescision
1b. Inducement
Didn't affect judgement
Representee relied on own investigation
Smith v Chadwick 1884
Attwood v Small 1838
Injury to 3rd parties
Knew misrep
was false
Where rescission available
Discretion of the court
Either party can ask - deny rescission, give damages instead
If this is less than damage
William Sindal plc v Cambridgeshire CC '94
Thomas Witter Ltd v TBP Industries Ltd '96
Govt. of Zanzibar v British Aerospace 2000
S.2(2) MisRep Act
Limited to Expectation Loss
So can't be relying on it
BUT insufficient to say representee could've investigated
Redgrave v Hurd 1881
3b Damages in lieu
of rescission
Jessel MR
Rep'or knew was false
Fraudulent
Available where rescission barred
Or was reckless w/ truth
Goes beyond negligence
Derry v Peek 1889
BUT better view that s.2(2) damages also barred
Believed rep was true, and
2. Classification
Rescission
Damages in lieu of rescission
Indemnity
Rep'or must establish
Innocent
Had reas'ble grounds for belief
If so, s.2(1) of Misrep Act
If can't, then negligent >>
3. Remedies
Residual category
Damages
Negligent
Rep which isn't fraudulent or innocent
Distinguish from Hedley Byrne negl. mis-statement
This work is based on the lectures of John Halladay and is licensed under the
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Misrepresentation.mmp
Change in circumstances
3 circumstances where statement doesn't induce
Representation needn't be sole reason for contracting to be actionable
AND representation not fraudulent
1/2 truths
Conduct
Election - Must be exercised by Good
Rescission available for ltd. time
4 exceptions
08/01/2007 - v8
Both parties restored to orig. position
Car & Universal Finance Co Ltd v Caldwell '65
Uberimmae Fidei
Gen'lly not actionable
Misrepresentation
Unwinding of transaction
No duty to make representation
Fiduciary rel'ships
3c Indemnity
Not necess'ly incl. losses incurred b/c Good acted reas'bly based on contract
Usually by notice to Bad, but sometimes by doing what's reas'ble
Andre & Cie SA v Ets Michel Blanc & Fils '79
Caveat emptor!
Incidental to right to rescission
Only impt when main remedy = rescission
Eddington v Fitzmaurice 1885
Esso Petroleum v Mardon '76
Mixed statement of fact & law
Newbigging v Adam 1886
Eddington v Fitzmaurice 1885
Gen'lly not actionable - 3 exceptions
Tortious basis
Royscott Trust Ltd v Rogerson '91
Fraudulent misrep of intent as a misrep of
state of representor's mind
Edgington v Fitzmaurice 1885