MISREPRESENTATION (W8)
* McKendrick, pp 237-268
* Misrepresentation Act 1967, ss 2 and 3 (cf Consumer Protection (Amendment)
Regulations 2014, reg 5)
* Consumer Protection from Unfair Trading Regulations 2008, regs 5, 27A-L
(inserted by Consumer Protection (Amendment) Regulations 2014)
Redgrave v Hurd (1881) 20 Ch D 1 (CA)
Esso Petroleum Co Ltd v Mardon [1976] QB 801 (CA)e
Peekay Intermark Ltd v Australia & New Zealand Banking Group Ltd [2006]
EWCA Civ 386
Hayward v Zurich Insurance Co Plc [2016] UKSC 48, [2016] 3 WLR 637
Royscot Trust Ltd v Rogerson [1991] 2 QB 297 (CA)
William Sindall Plc v Cambridgeshire County Council [1994] 1 WLR 1016 (CA)
at 1016-7, 1035-8, 1042-6
Car and Universal Finance Co v Caldwell [1965] 1 QB 525 (CA)
1. What is the difference between a contractual warranty and a representation?
How do we determine into which category a given statement falls? Why
does it matter?
(a) A warranty is always written on the face of the contract, while a
representation may be written or oral. a warranty is conclusively
presumed to be material, while the burden is on the party claiming
breach to show that a representation is material.
(b) A representation is an assertion as to a fact, true on the date the
representation is made, that is given to induce another party to enter
into a contract or take some other action. A warranty is a promise of
indemnity if the assertion is false.
2. Misrepresentation is typically said to be a false statement of fact or law. By
contrast, false statements of opinion are said not to be misrepresentations.
What is the difference between fact and opinion? When will a statement of
opinion nonetheless amount to or involve a misrepresentation?
(a) The fact is described as the statement that can be verified or proved to
be true. Opinion is an expression of judgment or belief about something.
Fact relies on observation or research while opinion is based on
assumption. The fact is an objective reality whereas opinion is a
subjective statement.
(b) A statement of opinion may amount to an actionable misrep where the
representor was in a position to know the facts: Smith v Land & House
Property Corp (1884) 28 Ch D 7
(c) Bissett v Wilkinson case establishes that misrep cannot be actionable
where the parties have opinion and not facts.
, 3. Ian is walking to work on a sunny summer’s morning. He hasn’t taken an
umbrella with him. He passes a street-side stall selling umbrellas, run by
Wincey. Wincey stops Ian and persuades him to buy an umbrella. Is there a
misrepresentation in each of the following cases?
(a) Wincey tells Ian, ‘It’s going to rain heavily this afternoon’. Wincey
honestly believes this. In fact, it does not rain.
i. This is a mere puff not a misrepresentation. Wincey's judgement
Is not factual.
ii. No misrep as Wincey provided an opinion. No special
knowledge or misstatement of current opinion Is In place.
(b) Wincey tells Ian, ‘I may be wrong, but I think it’s going to rain heavily
this afternoon’. In fact, Wincey expects it to stay dry. However, it does
indeed rain heavily that afternoon.
i. Ian merely proposed that It may rain so he does not state any
facts anyway, the rain being a coincidence.
ii. Opinion?
(c) Wincey tells Ian, ‘I am a trained meteorologist. I may be wrong, but I
think it’s going to rain heavily this afternoon.’ Wincey honestly believes
this, but this is because her neighbour, Thomas, told her earlier in the
day that it would rain because he woke up with a sore back, and, so
Thomas reckons, this is a sure sign of rainfall.
i. Relying on Thomas Is Insufficient.
ii. Misrep, under Esso v Marden/
4. What are the differences between a claim based on negligent
misrepresentation in the tort of negligence and a claim under s 2(1) of the
Misrepresentation Act 1967?
(a) Negligently—where the misrepresentation was made carelessly or
without the representor having reasonable grounds for believing its
truth. Under section 2(1) of MA 1967, the claimant may seek rescission
and/or damages. This is in addition to any possible breach of contract
damages.
(b) There will be a greater duty of care In Instances wherein the one party
has more knowledge. More damages can be received as well.
(c) Where the losses foreseeable or not? (2(1))
(d)
5. During the negotiations for the sale of her nail-bar business to Yasmina, Anji
says ‘I reckon you’ll make a £100,000 profit next year, easy. All the other
nail bars are about to close’. One reason why they are closing is that the
landlord of the shopping mall in which her shop is situated has just
doubled the service charges. Anji knows this but does not tell
Yasmina. Anji says the business has always made a ‘huge profit’, and
gives her the accounts for the past 5 years. Yasmina shows them to
her accountant to check. The accounts in fact reveal that the firm
* McKendrick, pp 237-268
* Misrepresentation Act 1967, ss 2 and 3 (cf Consumer Protection (Amendment)
Regulations 2014, reg 5)
* Consumer Protection from Unfair Trading Regulations 2008, regs 5, 27A-L
(inserted by Consumer Protection (Amendment) Regulations 2014)
Redgrave v Hurd (1881) 20 Ch D 1 (CA)
Esso Petroleum Co Ltd v Mardon [1976] QB 801 (CA)e
Peekay Intermark Ltd v Australia & New Zealand Banking Group Ltd [2006]
EWCA Civ 386
Hayward v Zurich Insurance Co Plc [2016] UKSC 48, [2016] 3 WLR 637
Royscot Trust Ltd v Rogerson [1991] 2 QB 297 (CA)
William Sindall Plc v Cambridgeshire County Council [1994] 1 WLR 1016 (CA)
at 1016-7, 1035-8, 1042-6
Car and Universal Finance Co v Caldwell [1965] 1 QB 525 (CA)
1. What is the difference between a contractual warranty and a representation?
How do we determine into which category a given statement falls? Why
does it matter?
(a) A warranty is always written on the face of the contract, while a
representation may be written or oral. a warranty is conclusively
presumed to be material, while the burden is on the party claiming
breach to show that a representation is material.
(b) A representation is an assertion as to a fact, true on the date the
representation is made, that is given to induce another party to enter
into a contract or take some other action. A warranty is a promise of
indemnity if the assertion is false.
2. Misrepresentation is typically said to be a false statement of fact or law. By
contrast, false statements of opinion are said not to be misrepresentations.
What is the difference between fact and opinion? When will a statement of
opinion nonetheless amount to or involve a misrepresentation?
(a) The fact is described as the statement that can be verified or proved to
be true. Opinion is an expression of judgment or belief about something.
Fact relies on observation or research while opinion is based on
assumption. The fact is an objective reality whereas opinion is a
subjective statement.
(b) A statement of opinion may amount to an actionable misrep where the
representor was in a position to know the facts: Smith v Land & House
Property Corp (1884) 28 Ch D 7
(c) Bissett v Wilkinson case establishes that misrep cannot be actionable
where the parties have opinion and not facts.
, 3. Ian is walking to work on a sunny summer’s morning. He hasn’t taken an
umbrella with him. He passes a street-side stall selling umbrellas, run by
Wincey. Wincey stops Ian and persuades him to buy an umbrella. Is there a
misrepresentation in each of the following cases?
(a) Wincey tells Ian, ‘It’s going to rain heavily this afternoon’. Wincey
honestly believes this. In fact, it does not rain.
i. This is a mere puff not a misrepresentation. Wincey's judgement
Is not factual.
ii. No misrep as Wincey provided an opinion. No special
knowledge or misstatement of current opinion Is In place.
(b) Wincey tells Ian, ‘I may be wrong, but I think it’s going to rain heavily
this afternoon’. In fact, Wincey expects it to stay dry. However, it does
indeed rain heavily that afternoon.
i. Ian merely proposed that It may rain so he does not state any
facts anyway, the rain being a coincidence.
ii. Opinion?
(c) Wincey tells Ian, ‘I am a trained meteorologist. I may be wrong, but I
think it’s going to rain heavily this afternoon.’ Wincey honestly believes
this, but this is because her neighbour, Thomas, told her earlier in the
day that it would rain because he woke up with a sore back, and, so
Thomas reckons, this is a sure sign of rainfall.
i. Relying on Thomas Is Insufficient.
ii. Misrep, under Esso v Marden/
4. What are the differences between a claim based on negligent
misrepresentation in the tort of negligence and a claim under s 2(1) of the
Misrepresentation Act 1967?
(a) Negligently—where the misrepresentation was made carelessly or
without the representor having reasonable grounds for believing its
truth. Under section 2(1) of MA 1967, the claimant may seek rescission
and/or damages. This is in addition to any possible breach of contract
damages.
(b) There will be a greater duty of care In Instances wherein the one party
has more knowledge. More damages can be received as well.
(c) Where the losses foreseeable or not? (2(1))
(d)
5. During the negotiations for the sale of her nail-bar business to Yasmina, Anji
says ‘I reckon you’ll make a £100,000 profit next year, easy. All the other
nail bars are about to close’. One reason why they are closing is that the
landlord of the shopping mall in which her shop is situated has just
doubled the service charges. Anji knows this but does not tell
Yasmina. Anji says the business has always made a ‘huge profit’, and
gives her the accounts for the past 5 years. Yasmina shows them to
her accountant to check. The accounts in fact reveal that the firm
