MN10442 – topic 3 – privity, terms and misrepresentation
Misrepresentation
Terms – the undertakings and rights that form the content of a contract
Representations – things said in discussion about the contract which do not form the
content of the contract
Mere puffs – things said which are merely salesman hype. Too ridiculous to be believed
Actionable misrep
- Untrue statement
- Material fact not opinion
- Includes the contract
Fact v opinion
- Representor holds specialist knowledge
o Oscar chess v Williams (1957) – sale of a car – statement of fact
- Words of conduct of making statement
o Spice girls v aprilla world service (2002) – statement of fact
- Vague and meaningless
o Dimmock v hallet (1867) – statement of opinion
- Statement of opinion
o Bisset v Wilkinson – statement of opinion
Statements of future intention not actionable unless never going to happen
- Edgington v Fitzmaurice (1885)
o Continuing duty to disclose if change situation
- With v o’flannagan (1936)
- Statement capable of inducing the contract?
o Not if the representee knew the statement was false
o Not if the representee would have entered into the contract regardless
- Attwood v small(1836)
Types of misrep
1. Fraudulent – (common law – tort of deceit)
a. When it is shown that a false representation has been made knowingly or
didn’t care if it was true or not. Recission/common law damages (available as
a common law right)
2. Negligent (misrepresentation act 1967)
a. No reasonable grounds to believe truth in what they are saying
recission/damages
3. Wholly innocent (misrepresentation act 1967)
a. Recission alone (exceptionally damages in lieu of recission). Reversal of
burden to demonstrate honest held belief in truth of the statement.
Misrepresentation
Terms – the undertakings and rights that form the content of a contract
Representations – things said in discussion about the contract which do not form the
content of the contract
Mere puffs – things said which are merely salesman hype. Too ridiculous to be believed
Actionable misrep
- Untrue statement
- Material fact not opinion
- Includes the contract
Fact v opinion
- Representor holds specialist knowledge
o Oscar chess v Williams (1957) – sale of a car – statement of fact
- Words of conduct of making statement
o Spice girls v aprilla world service (2002) – statement of fact
- Vague and meaningless
o Dimmock v hallet (1867) – statement of opinion
- Statement of opinion
o Bisset v Wilkinson – statement of opinion
Statements of future intention not actionable unless never going to happen
- Edgington v Fitzmaurice (1885)
o Continuing duty to disclose if change situation
- With v o’flannagan (1936)
- Statement capable of inducing the contract?
o Not if the representee knew the statement was false
o Not if the representee would have entered into the contract regardless
- Attwood v small(1836)
Types of misrep
1. Fraudulent – (common law – tort of deceit)
a. When it is shown that a false representation has been made knowingly or
didn’t care if it was true or not. Recission/common law damages (available as
a common law right)
2. Negligent (misrepresentation act 1967)
a. No reasonable grounds to believe truth in what they are saying
recission/damages
3. Wholly innocent (misrepresentation act 1967)
a. Recission alone (exceptionally damages in lieu of recission). Reversal of
burden to demonstrate honest held belief in truth of the statement.
