1. What is the difference between a misrepresentation and a warranty?
misrepresentation = false statement of fact/law by one party to
another, which, whilst not being a term of a contract, induces the
other party to enter the contract
warranty = part, term of contract – representation is not
part/term of contract
elements of misrepresentation
misrepresentation must have been false fact/law
has to be made before contract is concluded/entered into
has to be addressed to misled party
intended to be act upon by misled party
has to be induce misled party to be entered into
cannot be mere opinion – must be fact, but sometimes can be
seen as fact
inducement has to be on the reasons
edgington v fiztmorris = statement of intention can rise to level
of misrepresentation
company issued debts – said intention was to use money raised
was to expand business but used money to pay other case
court claim = statement of intention can rise to statement of fact
and misrepresentation
types of misrepresentation
innocent = common law and section 2(2)
benefit of using statute – can get damages
truly believe statement made
had reasonable grounds to believe statement is true
negligent = can be under common law and can be statute
can under statute section 2(1) – treated as fraudulent
made it unknowingly that it is false – ought to have known
better
headly byrne v heller – no actionable because exclusionary
clause claiming not liable – third party misrep
fraudulent = under statutory s2(1) and common law
misrepresenting party know it is lying
damages and/or recission [remedies]
statutory = section 2(1) [fraudulent and negligent] and 2(2)
[innocent]
using statute is better – has burden of proof and fiction of fraud
[allows to get same damages as tort of deceit claim, get higher
level of damages]
misrepresentation = false statement of fact/law by one party to
another, which, whilst not being a term of a contract, induces the
other party to enter the contract
warranty = part, term of contract – representation is not
part/term of contract
elements of misrepresentation
misrepresentation must have been false fact/law
has to be made before contract is concluded/entered into
has to be addressed to misled party
intended to be act upon by misled party
has to be induce misled party to be entered into
cannot be mere opinion – must be fact, but sometimes can be
seen as fact
inducement has to be on the reasons
edgington v fiztmorris = statement of intention can rise to level
of misrepresentation
company issued debts – said intention was to use money raised
was to expand business but used money to pay other case
court claim = statement of intention can rise to statement of fact
and misrepresentation
types of misrepresentation
innocent = common law and section 2(2)
benefit of using statute – can get damages
truly believe statement made
had reasonable grounds to believe statement is true
negligent = can be under common law and can be statute
can under statute section 2(1) – treated as fraudulent
made it unknowingly that it is false – ought to have known
better
headly byrne v heller – no actionable because exclusionary
clause claiming not liable – third party misrep
fraudulent = under statutory s2(1) and common law
misrepresenting party know it is lying
damages and/or recission [remedies]
statutory = section 2(1) [fraudulent and negligent] and 2(2)
[innocent]
using statute is better – has burden of proof and fiction of fraud
[allows to get same damages as tort of deceit claim, get higher
level of damages]
