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Misrepresentation, Terms and Privity
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terms and conditions of contracts
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MN10442 – topic 3 – privity, terms and misrepresentationMisrepresentation
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.
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