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Chapter

Cover Contract Law Directions

7. Misrepresentation  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter is concerned with the territory just beyond the borders of the contract, where we find the representations which are not part of the contract but which influenced its creation and which, if false, are remedied by the law on misrepresentation. The discussions cover the key elements of the definition of misrepresentation; the differences between fraudulent, negligent and innocent misrepresentations; and the remedies of rescission and the various rights to damages. This also includes the bars on the right to rescind, the principles of assessment of damages and the controls on excluding liability for misrepresentation.

Chapter

Cover Contract Law Directions

7. Misrepresentation  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter is concerned with the territory just beyond the borders of the contract, where we find the representations which are not part of the contract but which influenced its creation and which, if false, are remedied by the law on misrepresentation. The discussions cover the key elements of the definition of misrepresentation; the differences between fraudulent, negligent and innocent misrepresentations; and the remedies of rescission and the various rights to damages. This also includes the bars on the right to rescind, the principles of assessment of damages and the controls on excluding liability for misrepresentation.

Chapter

Cover JC Smith's The Law of Contract

16. Misrepresentation  

This chapter discusses misrepresentation in contract law. Misrepresentation is a statement of fact or law which is false, that induces a party to enter into the contract. A misrepresentation may be made by words or by conduct. All misrepresentations entitle the misrepresentee to rescind the contract. However, rescission will be barred where it is impossible to put the parties back into their original position; or where the misrepresentee has affirmed the contract; or where a long period of time has elapsed; or where a third party who has acquired rights for value in good faith would be disadvantaged by rescission. Damages are available at common law for the tort of deceit or for negligent misrepresentation. Most claims for damages are now made under section 2(1) of the Misrepresentation Act 1967.

Chapter

Cover Contract Law

17. Misrepresentation  

A misrepresentation induces a party to enter into a contract but typically is not part of the contract itself. The chapter examines the different types of misrepresentation (fraudulent, negligent, or innocent) and the remedies that the law provides in respect of a misrepresentation. The chapter focuses on the liability for misrepresentation. It begins by examining the definition of a misrepresentation. The chapter considers the extent to which English law recognizes the existence of a duty of disclosure and goes on to discuss the concept of rescission. It then explores how misrepresentation gives rise to a claim for damages, with a particular focus on section 2 of the Misrepresentation Act 1967. The final section examines the possibility of excluding liability for misrepresentation.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

9. Misrepresentation and non-disclosure  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines issues related to pre-contractual misrepresentation, which is a vitiating factor. It explains what counts as an actionable misrepresentation and discusses its distinction with the treatment of non-disclosure. It explores the elements for an actionable misrepresentation and the test of cause/reliance. It considers the remedies for misrepresentation, namely rescission which involves setting the contract aside and restoring the parties to the pre-contractual position, and damages, which are available at common law for fraudulent misrepresentation and under the Misrepresentation Act 1967 for other misrepresentations unless the misrepresentor can discharge the burden of reasonable grounds for belief. This chapter also explains that any clause that purports to exclude or restrict liability for misrepresentation is subject to the statutory requirement of reasonableness (for non-consumer contracts), and the normal CRA test of fairness (for consumer contracts).

Chapter

Cover Poole's Casebook on Contract Law

9. Misrepresentation  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may include a statement that is a mere puff, a representation, or a contractual term. In the case of a representation, the maker asserts the truth of certain facts and thus induces the contract. In case of an actionable misrepresentation (an unambiguous false statement of fact which induces the other party to enter into the contract), the contract may be rendered voidable; that is, liable to be set aside or rescinded. In some instances, the injured party may claim for damages designed to restore him to his original position. This chapter examines the identification of actionable misrepresentation, duties of disclosure, types of misrepresentations, rescission as a remedy, damages for misrepresentation, including the damages available in s. 2 of the Misrepresentation Act 1967, and the effect of contributory negligence in any damages award. Finally, the chapter examines exclusion of liability for non-fraudulent misrepresentation and the effect of ‘non-reliance’ clauses in contracts. In the consumer context, it also notes the criminal offences in certain instances of misrepresentation under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the extension to include civil remedies for misleading actions.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

13. Misrepresentation  

This chapter looks at misrepresentation. It first identifies the requirements for a misrepresentation, and highlights the situations in which the courts are willing to find misrepresentations although prima facie there are only statements of opinion which are stated not to suffice in themselves. It considers the remedy of rescission, and when it will be barred. It looks at the different ways in which damages may be provided for misrepresentation: for fraudulent misrepresentation under the tort of deceit; for negligent misrepresentation under the tort of negligent misrepresentation; and for negligent misrepresentation under s2(1) of the Misrepresentation Act 1967. It looks at the different requirements for each type, which it will be advisable to use, and what will be covered by a damages remedy for misrepresentation. Consideration is also given to remedies for aggressive and misleading trade practices under the amended Consumer Protection from Unfair Trading Regulations.

Chapter

Cover Poole's Casebook on Contract Law

9. Misrepresentation  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may include a statement that is a mere puff, a representation, or a contractual term. In the case of a representation, the maker asserts the truth of certain facts and thus induces the contract. In case of an actionable misrepresentation (an unambiguous false statement of fact which induces the other party to enter into the contract), the contract may be rendered voidable; that is, liable to be set aside or rescinded. In some instances, the injured party may claim for damages designed to restore him to his original position. This chapter examines the identification of actionable misrepresentation, duties of disclosure, types of misrepresentations, rescission as a remedy, damages for misrepresentation, including the damages available in s. 2 of the Misrepresentation Act 1967, and the effect of contributory negligence in any damages award. Finally, the chapter examines exclusion of liability for non-fraudulent misrepresentation and the effect of ‘non-reliance’ clauses in contracts. In the consumer context, it also notes the criminal offences in certain instances of misrepresentation under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the extension to include civil remedies for misleading actions.

Chapter

Cover Intellectual Property Law

33. Misrepresentation  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter considers one element of the action of passing off with respect to trade marks: the requirement that there be a misrepresentation. It first describes the type of conduct that amounts to misrepresentation and the consequences that flow from that conduct, as well as the types of suggestion that are actionable. It then discusses the requirement that a statement must be likely to cause confusion in order to qualify as a misrepresentation. In addition, the chapter explains how passing off action can be brought not only against a person who carries out the misrepresentation, but also against anyone who provides the means for the misrepresentation to occur (such as by providing instruments of deception).

Chapter

Cover Essential Cases: Contract Law

With v O’Flanagan [1936] Ch 575  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in With v O’Flanagan [1936] Ch 575. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law

Zurich Insurance Co. Ltd plc v Hayward [2017] AC 142; [2016] UKSC 48  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Zurich Insurance Co. Ltd plc v Hayward [2016] UKSC 48. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

With v O’Flanagan [1936] Ch 575  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in With v O’Flanagan [1936] Ch 575. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Zurich Insurance Co. Ltd plc v Hayward [2017] AC 142; [2016] UKSC 48  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Zurich Insurance Co. Ltd plc v Hayward [2016] UKSC 48. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Contract Law

5. Misrepresentation and non-disclosure  

In general, contract parties need not disclose important matters about the transaction to each other. But, those who make false statements to induce the other party’s consent to the contract may find themselves liable for damages for misrepresentation and their contracts set aside. This chapter examines: (1) what must be proved in an action for misrepresentation; (2) what, if any, duty is imposed for non-disclosure; (3) when a contract can be set aside (rescinded) for misrepresentation; (4) the different types of money awards that can be made for misrepresentation; (5) the extent to which the parties can exclude or limit liability for making a misrepresentation; (6) the recourse that consumers have against misleading and aggressive practices; and (7) the justifications underlying the remedies for misrepresentation.

Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, that is, the means by which one trader may prevent another from misleading customers by misrepresenting (or ‘passing off’) goods or services as emanating from the former party. It analyses the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, ie the means by which one trader may prevent another from misleading customers by representing (or ‘passing off’) goods or services as emanating from the former party. It analyses the leading judicial definitions of passing off, from which emerge the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Introduction to Business Law

7. Vitiating Factors  

A contract may meet the necessary formation requirements of offer and acceptance, consideration, and intention to create legal relations, but still not be binding because it lacks other necessary factors. These invalidating factors are sometimes referred to as ‘vitiating factors’. This chapter discusses statements that constitute actionable misrepresentations; the difference between fraudulent, negligent, and innocent misrepresentation; the remedies available for each type of misrepresentation; and the effect a misrepresentation will have on the validity of a contract. The chapter considers types of mistake and when a court will regard a mistake as an operative mistake rendering the contract void. It also considers how duress and undue influence may arise, the presumptions relating to undue influence, and whether the presence of duress and undue influence will make a contract voidable. Finally, the chapter considers types of contract that are illegal under statute and under common law.

Chapter

Cover Business Law Concentrate

3. Contract II: mistake, misrepresentation, duress, and undue influence  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for and how to achieve extra marks. This chapter considers contract law and the factors that may affect the contract or its validity: mistake, misrepresentation, duress, and undue influence. A contract may be held void due to a fundamental mistake, as the parties did not have a true agreement. An action under misrepresentation is available if an untrue representation is considered ‘actionable’. If a contract is established on the basis of violence (or a threat), or unlawful economic pressure, this may be considered to be a case of duress. Where undue influence has been used to form the contract, it will be voidable.

Chapter

Cover Essential Cases: Contract Law

Edgington v Fitzmaurice (1885) 29 Ch D 459  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Edgington v Fitzmaurice (1885) 29 Ch D 459. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Equity & Trusts

Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.