1. Any untrue statement of fact or law has been made by a party or its agent and when such statement induces the other party to enter the contract with and thereby resulting in a lost to the second party known as misrepresentation. The Action for misrepresentation can be brought regarding a mispresentation of fact or the misrepresentation of law.
In this way, a misrepresentation striped as a false statement of fact or law, other party is induced to enter into a contract. The law provides that when the statement has been made in the course of negotiations, it can be termed as a representation instead of a term of the contract and an action for misrepresentation may be available to the other party where the statement has turned out to be untrue. In this regard it needs to be noted that there are three types of misrepresentation. These are fraudulent misrepresentation, regent misrepresentation and innocent misrepresentation (Smith v Land & House Property Corp, 1884). When it is discovered that a contract has been made on account of a misrepresentation the effect is that the contract is considered as voidable. This means that the contract is present but it can be set aside by the party to such misrepresentation was made. The remedy available depends on the nature of misrepresentation. Generally the remedy consists of the recession of the contract and at the same time the party me also claim damages. However, there are certain circumstances where the right to rescind the contract may not be available to the other party.
A statement can be described as an actionable misrepresentation if the criteria mentioned below is satisfied:-
False statement: A party to the contract should have made a false statement of fact or law as compared to an opinion or an estimate regarding future events (Bisset v Wilkinson, 1927).
The law provides that a statement of opinion may amount to an actionable misrepresentation if the party making the representation was in a position to know the facts (Smith v Land & House Property Corp., 1884).
It is further provided that a statement regarding chain cannot be considered as a misrepresentation unless seeking the Representation had no intention of carrying out the stated intention. The law further provides that silence will not be considered as misrepresentation. Therefore unless the contract is of uberrimae fidei or in other words the contract of utmost good faith like a contract of insurance or where the party making the representation in a fiduciary position, even silence may be considered as misrepresentation. In case of contacts, there is a duty present on part of the representor to disclose material facts and similarly any failure to disclose all the material facts may result in an action for misrepresentation (With v O’Flanagan, 1936).
The significance of a misrepresentation been classified as fraudulent misrepresentation is that the measure of damages may be higher under certain circumstances. As mentioned above, the two remedies that are available in case of fraudulent misrepresentation are the recession of contract and damages.
A fraudulent misrepresentation has been defined by the court in Derry v Peek (1889). The court stated that a false statement that has been made knowingly and without believe in the truth this statement organ comment has been made recklessly without caring too it is true or false, can be described as a fraudulent misrepresentation.
In order to decide if a particular statement can be described as made fraudulently, it needs to be considered if the party making the statement was aware that statement made is false and if the party making the statement has reasonable grounds to believe that the statement is true even if the statement is false. Therefore in the first case, this statement will be considered as clearly a fraudulent statement. On the other end in the second case, if the party making the statement has made a false statement but reasonable Grounds to believe that will not be considered as a fraudulent statement. The reason is that in this case the statement is not been made recklessly or carelessly. A statement that has been made recklessly needs to be the statement that has been made by the party without having any believe in the truth of the statement.
In this case, Andy was willing to purchase the drinks manufacturing business of Billy. Therefore Billy took Andy on a tour of the factory. However, Billy did not show Andy the machines that were in need of major repairs. Billy also told Andy that he has 20 experienced staff members while the reality was that 15 out of these staff members had already given notice of resignation as they were going to join a rival company. Billy also made a statement that there was going to be an increase in sales in the next few months with the improvement in the economy and more spending by the consumers. He also provides an exaggerated statement of the past earnings of the business.
All this amounts to a fraudulent misrepresentation.
Andy also entered into a contract with Chris for purchasing 1000 cardboard boxes. However, at the time of the contract, both of them were not aware that the cardboard boxes had a warehouse fire.
This is a case of impossibility of the performance of the contract. Impossibility involves the cases where the party is unable to perform the contract due to a supervening event that has taken place after the contact. In such a case, the law excuses the performance of the contractual duty.
In the present case also the contract between Andy and Chris had become impossible to perform. Under the circumstances both the parties are relieved from their obligations under the contract.
2. The major difference that is present between a representation and a warranty is related with the remedy that is available to the other party in case of the breach of contract. Therefore, a representation can be described as a statement of fact on which the other party has relied upon and such party was induced to on account of that statement. Generally such statement is made before the parties have entered into the contract but the statement may also be repeated in the contract also (Oscar Chess v Williams, 1957). Misrepresentation be claimed by the other party when a false representation has been made. In such a case, the injured party may be able to get the contract rescinded. This means that the contact set aside and angel party may also be entitled to claim damages so that the party may be placed in the same position where the party would have been is the contract was never entered into by the parties (Dick Bentley v Harold Smith Motors, 1965).
On the other hand, a warranty can be described as a statement of fact that has been made in the contract. If such a statement turns out to be untrue, the other party and bring your claim for the breach of contract. In case the breach is a fundamental breach of the contract, the party gets right to terminate the contract apart from the right to claim damages. However in this case, as against a claim for misrepresentation, the contract is not undone.
In view of the legal position discussed above, it appears that statement is true according to which the distinction between representations and terms of a contract is important due to the reason that different remedies are available in case of a breach of a term as compared to a misrepresentation.
References
Bisset v Wilkinson [1927] AC 177
Derry v Peek [1889] UKHL 1
Dick Bentley v Harold Smith Motors [1965] 1 WLR 623
Oscar Chess v Williams [1957] 1 WLR 370
Smith v Land & House Property Corp (1884) 28 Ch D 7
With v O’Flanagan [1936] Ch 575
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