I. Misrepresentation Introduction Distinguishing between puf, term & representation o Puf: Vague and exaggerated, no reasonable person will rely on Does not give rise to legal onse!uenes. "annot be term or representation o # #erm erm $n%oreable undertaing 'has legal onse!uenes( Part o% ontrat. )hether a statement is part o% the ontrat *epresentation o +tatement that asserts the truth o% something without guaranteeing it to be so May not be part o% ontrat but gives rise to ause o% ation %or misrepresentation when untrue statement may both be a term and representation Want specifc perormance / remedy: Sue statement as term o o contract 'repr 'representation esentation not good enough( - *D" "onrete 'when an see termination %or breah o% ontrat: ong /ong 0ir approah, 1(, but high threshold May seek misrepresentation instead lower instead lower threshold %or reession o% o ontrat 'not terminat termination( ion( 2o general duty to dislose exept %or ertain types o% ontrats eg. insurane ontrats that are uberrimae fdei 'duty to at in good %aith( o Common law: No duty o disclosure in ordinary ommerial ontrats o $xeptions: Insurane ontrats 'ontrat o% good %aith(, has duty to dislose Duty not to make any alse statement statements s 3 ation %or misrepresentation misrepresentation •
•
•
Statutory duties "on4it between statute and parliament, statute must apply 'intention o% parliament( "onsumer Protetion '0air #rading( t '"ap 56( 7un%air praties8 in onsumer transations s 9 'meaning o% 7un%air pratie8( +eond +hedule 'examples o% 7un%air praties8( • • •
Section 4 4. It 4. It is an unair practice or a supplier, supplier, in relation to a consumer transaction — a) to do or say say anything, or omit to do or say anything, anything, i as a result a consumer consumer might reasonably be deceived or misled; (under statute, there is a duty to disclose vs. common law no duty to disclose) b) to make make a alse alse claim claim;; c) to take advantage o a consumer consumer i the supplier knows knows or ought reasonably reasonably to know that the consumer — i. is not not in in a pos posit itio ion n to prot protec ectt his his own own inte intere rest sts; s; or or ii. is not not reason reasonabl ably y able able to under understa stand nd the the charac character ter,, natur nature, e, langua language ge or eect o the transaction or any matter related to the transaction; or d) without limiting the generality o paragraphs paragraphs (a), (b) and (c), to do anything anything specifed in the !econd !chedule. •
Second Schedule !art "# $xamples o% 7un%air praties8 whih relate to misrepresentations: ". #epresenting that goods or services have sponsorship, approval, perormance characteristics, accessories, ingredients, components, $ualities, uses or benefts that they do not have. 1A. #epresenting that the supplier has a sponsorship, approval or a%liation with respect to the supply o goods or services that the supplier does not have. 1B. &aking a alse or misleading representation concerning the need or any goods or services. '. #epresenting that goods or services are o a particular standard, $uality, grade, style, model, origin, weight, volume, length, capacity or method o manuacture i they are not. . #epresenting that goods are new or unused i they are not or i they have deteriorated or been altered, reconditioned or reclaimed. . #epresenting that goods have been used to an e*tent dierent rom the act or that they have a particular history or use i the supplier knows it is not so.
II$ %perati&e Misrepresentation 'lements "ommon law: to see what amounts to misrepresentation an unambiguous, %alse statement statement o% %at statement addressed to the party misled statement indues party misled to enter into ontrat • • • •
1. Unambiguous false statement Inludes: "$" hal(truth/partial non(disclosure '2ot all relevant %ats were made nown( Dimmock v Hallett Vendor made statement that %arms were %ully tenanted o 0ully tenanted: an earn rented inome mitted to in%orm purhaser that tenants had given notie to !uit o no more rented inome, need to soure %or new tenant eld to be a misrepresentation. •
•
•
"$) *continuin+, representation: duty to correct alse representation chan+e o circumstances# With v ! "lanagan Dr 80lanagan orretly represented to buyers that his medial pratie was valued at 6,;;; pounds owever, value o% pratie pratially worthless by time sale onluded 5 months later beause o% his ill health s representations were ontinuing, duty exists to orret it later i% %alsi
•
•
•
"$ misrepresentation 0y conduct S#ice $irls %td v A#rilia World Service +=> ontrated to do promotional wor %or )+ in onsideration o% )+ sponsoring a onert tour "ontrat desribed +pie =irls as ?urrently onsisting@ o%
ater, all the girls partiipated in a photo shoot organised by )+ be%ore ontrat was signed. eld misrepresentation by ondut as +=> led )+ to believe that no one was leaving. •
• • •
•
mere silence #er se1 insuBient to amount to misrepresentationC no general duty to dislose. &rans'World (Aluminium) v *ornelder *hina (S$) +-nothing in general law (common law) which re$uires that ordinary/ commercial transactions - be carried on in a completely open way or re$uiring ull disclosure at all times- however, anything said should be honest as otherwise it an amount to wil%ul suppression o% material and important %ats whih will render statements untrue *ule: Auyers beware. *esponsibility o% buyer to mae en!uiry. I% seller lies, o may amount to wil%ul suppression o% in%ormation 'ause o% ation in misrepresentation( o "ommon law: +eller under no obligation to tell the buyer o% important things that the buyer would want to now. "ommon law onerned with ative misrepresentation 'word ondut( o not passive misrepresentation • •
•
+. Statement of fact )$" Statement o opinion1 statement o% opinion ationable where 'i( it is dishonest or 'ii( there is no reasonable basis %or it Smith v %and , House -ro#erty Vendor desribed tenant as ?a most desirable tenant@ /new that tenant8s rent had remained unpaid and was late in instalments 'one party new more than the other( +tatement not one o% opinion E mounted to misrepresentation 2owen -3: i acts are not e$ually known to both sides, statement o opinion by the one who knows the acts best might imply a statement o acts which 0ustiy that opinion 'depending on the ase( • •
•
•
sso -etroleum %td v /ardon M 0 prospetive tenant o% station, told by $ that annual turnover was 6;;,;;; gallons per year #urnover only FG,;;; gallons per year +tatement was a pro
• • • •
he is under a duty to use reasonable are to see that the representation is orret, and the advie, in%ormation or opinion is reliable.@ c Bisset v Wilkinson +tatement to buyer that land had apaity %or 6,;;; sheep Aoth vendor and buyer in same position to %orm opinion on this sine both aware that land had never been used %or sheep %arming '+eller proven no speial sill in determining sheep apaity( +tatement an honest opinion whih did not imply that vendor new %ats Husti%ying it Auyer not allowed to resind ontrat E 2o misrepresentation • •
•
•
)$) Statement o uture conduct/intention1 generally not a statement o% %at but statement is ationable i% misrepresentin+ present intention 'dishonesty( and nows about it dgington v "itmaurice +tatement o% intent in prospetus misrepresented that money raised by ompany would be used to grow the ompany Money used instead to pay debts and ompany new that eld liable %or misrepresentation •
• •
Wales v Wadham +1 statement o intention is not a representation o e*isting act , unless the person making it does not honestly hold the intention he is e*pressing, in which case there is a misrepresentation o act in relation to the state o that person2s mind •
c &an *hin Seng v 2a3es &on *lub -te %td +tatement by lub operator to provide
•
Deutsche Bank v *hang &se Wen DA, through its relationship manager, M, introdued Dr "hang to the ban8s private wealth management servies whih were also ontained in a brohure provided to him. o >e%t to Dr "hang to deide whether to sign up or not >ater, Dr "hang signed up with DA, opening an aount %or investment purposes in respet o% whih he sufered huge losses. 2o misrepresentation. In%ormation in 0rochure and representations con&eyed by M were statements o uture intention made in the honest 0elie in their truth. #hey were meant to interest him into entering into relationship with DA. lso, representation that servies provided by DA were amongst the best when ompared to other international bans, was not alse$ •
•
•
•
)$ Statement o law:
traditionally, not ationable in misrepresentation. 2ow: LMisrepresentation an amount to indued mistae "ommon law needed in transations involving land 'see ords abolished law3%at distintion in allowing restitutionary laims %or mistaen payment in law. '2o more distintion o% %at and law: an reover money paid under mistae o% law( •
-ankhania v %B Hackney #he igh "ourt held that the misrepresentation o% law rule no longer appliable in light o% the deision in 3leinwort 4enson. o Misrepresentation to law: upiers ontratual liensee, but atually tenants proteted under / #enants t o ene misrepresentation o% law rule did not survive /leinwort Aenson •
6. Statement addressed to the #arty misled -eek v $urney Purhaser o% shares relied on %alse statements in prospetus Prospetus issued to original allottees and not to purhaser Purhaser an8t sue %or losses sufered N2: indirect representation efetive i% representor intended it to 0e passed to representee • • • •
4. Statement induced #arty misled to enter contract • •
statement need not be sole induement provided it is a material induement materiality 'importane( o% misrepresentation not suBient reason %or invoing presumption o% reliane 'indues representee to enter into ontrat( o 2eed to prove both materiality and induement, re!uirements diferent and separate o +=: mere materiality is not suBient to invoe indue presumption o% reliane o Vs. the view that they are the sameN
%im 5oon -ark v 7a# 8in /eng S$*A *espondents sought to resind agreement to set up Hoint venture ompany on aount o% appellant8s misrepresentation as to land8s plot ratio o Plot ratio: determines whether the land an be used more intensively: build higher buildings 2o misrepresentation on %ats. $ven i% there was, trial Hudge wrong to onlude respondents had relied on appellant8s statement as to plot ratio only beause it was o% a material nature o *espondent alleged that maximum plot ratio was misrepresented, but ourt %ound that ppellant never misrepresented maximum plot ratio, but have misrepresented approved plot ratio Presumption o% reliane only one as to %at, not o% law - appliability o% presumption depends on %atual matrix: n %ats, presumption inappropriate - lear evidene that respondents had at no relevant time plaed any reliane on appellant8s representation ppellant no time to put reliane on approved plot ratio: o +uggested that re!uirements %or materiality and reliane diferent •
•
•
•
Wee *hia Sek Anna v 9g %i'Ann $enevieve S$*A nna )ee sought to set aside separation agreement to %orgo division o% matrimonial assets entered into with her deeased %ormer husband on ground o% %raudulent misrepresentation )hile proo% o% %raud may onstitute suBient reason %or in%erring induement, whether a representee is so indued is one o% %at to be established by available evidene. ene, it does not mean that induement will be presumed whenever dishonest representation is established. 2or does it obviate the need to prove reliane, the burden %or whih was on the representee. 2o evidene that representation as to deeased8s
•
•
•
4$" there is inducement i claimant: • • •
•
is aware o% statement does not now that statement is untrue relied on statement 'not satis
• •
•
•
8urong &on *or# v Wishing Star %td )+> wants to tender %or a proHet +everal statements in tender douments submitted by )+> untrue. "ontrat terminated by #". )+> arguing that #" relied on evaluation by its onsultant '"P>( "ourt states that )+> annot esape %raudulent misrepresentation unless #" learnt o% untruth be%ore entering ontrat or does not rely on misrepresentation. '"an still terminate( 'else one would be enouraging %raud: ation annot be brought i% expert annot disover truth('expertise maes no diferene( $xpertise o% #" does not mean they were not indued 3 #" also indued by statements to award ontrat to )+> • •
• •
•
4$) sel(induced misrepresentation1 ng Hui *heh David v #era $allery $ had purhased a limited edition o% a bronOe sulpture %rom = thining that it was an exlusive piee •
• •
•
)hen it turned out not to be so, he sued %or, inter alia, misrepresentation. +el%3indued misrepresentation on $8s part as he alone was unilaterally o% the view that it was an exlusive piee. = made no representation to this efet. Mere silene per se annot onstitute misrepresentation.
:. ;ect of misre#resentation renders ontrat voidable, not void i.e. ontrat is valid unless set aside by representee representee has 6 options: o aBrm 'ontrat ontinues(C 'a%ter aBrming, an no longer set it aside( or o resind 'ontrat terminated ab initio( 'more later( 'not termination 'breah o% term(, terminated ab initio '%rom the beginning( not terminated prospetively( •
<. &y#es of /isre#resentation Determines the laimant8s rights. *e4ets state o% mind o% representor. $" 5raudulent misrepresentation absene o% honest belie% that statement was trueC or reless whether it was true or %alse bring ation in tort o% deeit Derry v -eek *epresentation by ompany in prospetus that it had right to run trams by steammehanial power tion in tort o% deeit - proo% o% %raud re!uired 2o %raud on the %ats. "ompany had applied %or right and reeived no obHetions 3 honest belie% they would get the right 'plaed that they have the right in the prospetus( •
•
•
•
• •
$) Ne+li+ent misrepresentation breah o% duty o% are 'duty o% are arises, 1( bring ation in negligene 'tort( Hedley Byrne v Heller • •
$ Innocent misrepresentation made without %ault 'neither %raudulently nor negligently( $g. land owner did everything he ould 'heing authorities, 1( to Husti%y that the land is good, but did not disover septi tan below land despite his best efort 2ot %raudulent or negligent, but still a misrepresentation. +till have onse!uenes •
•
$4Statutory misrepresentation Misrepresentation t '"ap K;(, s 6'J( *epresentor an esape liability i% he an show that he honestly believed in what he said Purely innoent misrepresentation •
•
III. *emedies %or Misrepresentation
1. 2escission resission: setting aside ontrat *esission %or misrepresentation: representee an rescind contract ab initio i.e. ontrat set aside %rom the 0e+innin+ and parties restored to pre3 o ontrat position to be distinguished %rom resission or breach whih gives right to terminate %urther per%ormane o% ontratC seondary obligations to pay damages arise o "ontrat terminated prospetively, not ab initio '%rom the beginning( resission %or misrepresentation available %or >> types o% misrepresentation at ommon law •
•
•
J.J Must ommuniate intention to resind to representor 'notie not always neessary( I% party wants to resind, must ommuniate intention to representor *ar and Universal "inance v *aldell 0raudster ommitted %raudulent misrepresentation in obtaining "ar and niversal 0inane '"0(8s ar and absonded. "0 in%ormed utomobile ssoiation and polie. In the meantime, %raudster sold ar to rd party who in turn sold to ". 'trying to relaim ar %rom "( "0 held to have efetively resinded ontrat be%ore " a!uired rights to ar. 'In the irumstanes, ommuniation not always neessaryC "0 had done all it ould.( o $xeption to re!uirement o% ommuniation to representor 'annot ontat representor( o Aut i% an ontat - should ommuniate intention 2A: Misrepresentation t, s J'a( provides %or resission remedy even i% misrepresentation has beome a term o% the ontrat o laimant an see resission o% ontrat or get damages %or breah o% ontratual term 'ontrat still alive( o Aut I% laimant go %or resission %or misrepresentation, annot sue %or breah "ontrat set aside %rom beginning - no ontrat Ae%ore sJa, representee 'laimant( at a worse of position o I% a misrepresentation beomes a term o% ontrat, representee loses right to resind "an only go %or ontratual laim, not misrepresentation o o #o terminate, must be a serious breah. o Aut representor still has right to resind 'even i% minor term( 2ow representee has right to resind ept alive due to sJa •
•
•
+. Bars to rescission 6.J Brmation L"ontrat voidable, not void. *epresentee hoose to ontinue with ontrat nowing o% misrepresentation I% representee aBrm ontrat despite nowledge, an no longer resind. %ong v %loyd >orry advertised by D as being ?in exeptional ondition@. P notied many de%ets a%ter viewing lorry. dvised by expert that lorry not in roadworthy ondition at all. P still bought lorry and used it whih broe down ompletely. •
• •
•
P an8t resind ontrat as he had aBrmed it.
6.6 >apse o% time '%or non3%raudulent misrepresentation( L%raudulent misrepresentation: "annot bar resission i% representee remains ignorant about the %raud Lnon3%raudulent misrepresentation: +ubstantial passage o% time may bar resission %eaf v =nternational $alleries I= innoently represented painting as being done by "onstable > disovered untruth 5 years a%ter ontrat 'substantial passage o% time( > an8t resind ontrat 3 had aepted painting as he had ample opportunity to examine it. o #aen to have aepted due to ample opportunity to examine • • •
6. #hird party rights have intervened P a!uired rights: $nsure ertainty and seurity o% title to the purhaser $lse ommerial transations very unertain •
cf *ar and Universal "inance *o %td v *aldell I% 0raudster sold to " be%ore polie in%ormed o% %raud, and " buys in good %aith and gives value o% ar 'bought the ar be%ore ontrat is resinded( 0" annot resind ontrat Aut in this ase 0" resinded the ontrat be%ore " bought - hene not appliable here •
•
6.9 Impossible to restore parties to original positions 'restitutio in integrum( "ontrat voided %rom the very beginning )hat to be restored is the exat thing reeived 'physial goods et.( 3 but i% goods has been onsumed sold to P developed on, annot restore I% annot restore - bar to resission • •
•
Aut ourts start to reogniOe what is pratially Hust - rule relapsed I% ourt an exerise its power to do what is pratially Hust, resission will be allowed to go ahead •
Alati v 5ruger (High *ourt of Australia) / purhased business store %rom / entitled to resind on aount o% 8s misrepresentation "ourt: Preise restitutio in integrum not neessary. o $!uity allows resission as long as substantial restitution is possible, by taing aount o% pro
6.5 Ine!uitable to allow resission Misrepresentation t '"ap K;(, s 6'6( 'more later( •
6. Damages t ommon law, right to, and measure o%, damages difer aording to whether misrepresentation is %raudulent, negligent or innoent fets representee8s right ene state o% mind o% representor is very important • •
$" 5raudulent misrepresentation measure o% damages 'tort o% deeit( *epresentee has right to laim all diret 'inluding onse!uential( loss 4owing %rom the %raudulently indued transation, e&en i such loss was not reasona0ly oreseea0le o #o disourage and deter %raud Aetween %raudster and innoent party, %raudster must pay %or his o %raudulent ondut Wishing Star v 8&* Q6;;GR 6 +>* K;K at QJSR3Q6GR o Measure o% damages • •
•
$) Ne+li+ent misrepresentation measure o% damages 'tort o% negligene( o duty o% are, remoteness, %oreseeability omes in o not as wide as tort o% deeit negligene measure %or misstatements in tort Hedley Byrne v Heller •
•
$ Innocent misrepresentation no right to damages given that no tort 'wrong( is ommitted but may still attrat liability under statute ie. Misrepresentation t o *ight to indemnity 2o liability %or innoent misrepresentation 'representor did all he ould( Disharged all duty o% are, annot be %raudulent or negligent o • •
•
$4 Misrepresentation 6ct Ae%ore edley Ayrne: o "ommon law: damages an only be laimed %or %raudulent misrepresentation =ap exists: no liability %or negligent misrepresentation o t enated be%ore 5edley 4yrne deided t provides a statutory remedy %or damages %or negligent misrepresentation •
• •
4. /isre#resentation Act0 section +(1) + 6here a person has entered into a contract after a misre#resentation has been made to him by another #arty thereto and as a result thereo he has su;ered loss, then, i the person making the misrepresentation would be liable to damages in respect thereo had the misrepresentation been made raudulently, that person shall be so liable notithstanding that the misrepresentation as not made fraudulently , unless he #roves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts re#resented ere true. *e!uirements o Must have ontrat o *epresentation must be made by one o% the parties o% the ontrat *epresentee must have sufered loss o o I% %ul
•
o
"annot apply 3 2o ontrat, no appliation o% this at
4$" di7ers rom suin+ under tort o ne+li+ence at common law as ollows: J. burden o% proo% reversed under s 6'J( Aurden proo% under representor that he ated honestly 'vs. under representee last time( 6. no neessity %or 5edley 4yrne relationship to ground liability, provided ontrat established between laimant and de%endant, and loss is sufered as a result o% latter8s misrepresentation must be *epresentor8s misrepresentation . measure o% damages diferent - representee entitled to %raud measure o% damages %or tort o% deeit under s 6'J( liable %or all loss edley Ayrne: must be %oreseeable •
•
• •
2oyscot &rust v 2ogerson 2on3%raudulent misrepresentation by D 'ar dealers( to P '
• • •
4$) 5iction o raud *e%erene to %raud in s 6'J( simply a ?<tion@ in that it provides %or representor to be liable %or damages as if he made %raudulent misrepresentation even though misrepresentation not made %raudulently Aeause be%ore the at - only %raudulent misrepresentation an entitle representee to damages Innoent misrepresentation no laim ene haraterise 2egligent misrepresentation as %raudulent misrepresentation •
• •
Smith 9e *ourt Securities v Scrimgeour >ickers 'at 6SF and 6G( "ritiised, but did not have onluded view on *oysot #rust '" ase( •
2B* -ro#erties v Defu "urniture 'at QG9R(: 7biter 8 +- no reason in logic and principle why measure o damages should not instead be that awarded under-negligent misrepresentation- situation not one that pertained to actual raud or deceit, but, on the contrary, one that ell short o it-. "ritiised deision on measuring damages laid down in *oysot #rust •
4$ Criticism to .oyscot 8rust J. wording o% subsetion ?so liable@ direted towards establishing liability and not measure o% damages 'to tort o% deeit( 6. not a %air solution to apply deeit measure o% damages 'rather than the negligene measure( %or %ools or areless representors treated lie %raudsters . better %or representee to laim under 6'J( than to laim in deeit sine no need %or representee to prove representor was %raudulent 'ommon law: burden o%
proo% on representee( - *epresentor had to prove he was not out o% step with modern developments 'ated honestly( Aut s6'J( appliable only i% ontrat exists o o I% ontrat does not exist 'eg. P( 'annot meet re!uirements in s6'J((, must sue under ommon law 'edley Ayrne( N2: to esape liability under s 6'J(, representor must prove his honesty and reasonableness in maing statement Ledley Ayrne reognised lesser liability %or negligent misrepresentation, but *oysott doesn8t 2B* -ro#erties v Defu "urniture *A" sublet premises to De%u %or use as %urniture showroom. *A" represented that all neessary approvals had been obtained %rom +ingapore >and uthority '+>( whih was untrue. +> obHeted to suh hange o% use o% premises %or whih diferent premium was assessable. De%u entitled to resind sublease 'main lease %rom #"( %or misrepresentation but not damages under s 6'J(. =iven %atual matrix 'e.g. +> had remained silent %or almost 9 years as to whether diferent premium was assessable in misled *A" Properties into thining that the premium payable was the same( •
•
•
•
"onlusion: "ommon law or +6'J(
:. /isre#resentation Act0 section +(+) +6here a person has entered into a contract ater a misrepresentation has been made to him otherwise than raudulently, and he would be entitled, by reason o the misrepresentation, to rescind the contract, then0 if it is claimed , in any proceedings arising out o the contract, that the contract ought to be or has been rescinded , the court or arbitrator may declare the contract subsisting and aard damages in lieu of rescission, if o opinion that it would be e?uitable to do so, having regard to the nature o the misrepresentation and the loss that would be caused by it i the contract were upheld, as well as to the loss that rescission would cause to the other party. 9$" Court may +i&e dama+es in lieu o rescission i euita0le to do so court,s discretion# esp or innocent misrepresentation ; may award dama+es and not rescission# 0ators: J. nature o% the misrepresentation 6. the loss that would be aused to the representee i% the ontrat were upheld 'beause there were no resission( . the loss that resission would ause to the representor William Sindall v *ambridgeshire ** )+ bought land %rom """ %or U5m. sed by )+ whether there were any private publi rights afeting land, """ replied ?2o@. >ater, )+ disovered %oul sewer beneath land. >and value dropped by hal%. Aad bargain %or )+ 'wanted to redevelop the land( •
•
2o misrepresentation, but even i% there was, ourt would give damages in lieu o% resission under s 6'6( 'obiter( beause: i. 2ature o% misrepresentation - relatively minor in relation to U5m saleC 'land ould still be develop( ii. >oss to representee i% ontrat upheld - ost o% diverting sewer UJG,;;; %or representee is muh less than iii. >oss to representor i% ontrat resinded - UGm 're%und o% purhase prie plus interest, very large( unHust to resind 'no %raudulent negligent misrepresentation( &iong See ng v 7eo 5hee Siang (local case) P 'wi%e( and D 'husband( entered into agreement to settle matrimonial assets in ontemplation o% divore. >ater, P disovered that some assets omitted %rom agreement. P had relied on misrepresentation. #he misrepresentation was, however, not a deliberate omission. •
•
"ourt exerised disretion under s 6'6( 8 awarded 9 nominal damages; declined to order rescission as it was disproportionate on acts: i. Misrepresentation did not go to heart o% agreement - property omitted made up only slightly more than JT o% total assets settledC 'minor misrepresentation( ii. P did not sufer any harm as her interests in property as Hoint owner remained intatC and 'interest o% wi%e remained intat( iii. *esission would throw parties ba into litigation with little lielihood that better outome ould be ahieved. 'loss to representor( c 2B* -ro#erties v Defu "urniture ward o% damages in lieu o% resission given at disretion o% ourt where it is e!uitable to do so. Disretion to be exerised only in accordance with esta0lished principles, the %oremost o% whih is that, damages may be awarded in lieu o% resission where misrepresentation is sli+ht or relatively unimportant in irumstanes o% ase. In this ase, ourt will not exerise disretion to award damages in lieu o% resission, as misrepresentation went to the heart o% the ontrat and there was little merit in upholding lease 'not allowing resission(. ene resission allowed •
•
•
•
9$) Measure o dama+es: some su++estions in William Sindall J. based on ost o% ure 'to
9$4 Section )# permits award o dama+es under 0oth s ) "# and s ))# but re!uires s6'6( to be taen into aount in maing s 6'J( awards Prevent exessive awards • •
9$9 .euirements o each section +6'J( re!uirements: reliane +6'6( re!uirementsN +6'( prevents exessive amount awarded • • •
<. *ommon la remedy of indemnity on rescission *epresentee entitled to reover osts inurred in disharging legal obligations neessitated by ontrat Whittington v Seale'Hayne +8s innoent misrepresentation that premises %or breeding poultry were in good sanitary ondition indued ) to tae lease o% premises. In %at, water supply ontaminated. Manager %ell ill and pigs died. >ease resinded. ) entitled to be indemniegal obligations re!uired under ontrat 'spelled out in ontrat( owever, ) not entitled to reover %or lost sto and manager8s medial expenses as ontrat did not re!uire manager, or sheds or livesto '"ontrat did not legally oblige all these( •
•
•
LLLIndemnity only overs legal obligations neessitated by ontrat 2B* -ro#erties v Defu "urniture )here misrepresentation is innoent and representor has satis
•
•
LLLIndeminity only %or obligations overed by ontrat
IV. $xlusion "lauses 1. /isre#resentation Act0 s 6 6&oidance o pro&ision e
•
• •
generally, term exludinglimiting liability %or onse!uenes o% a misrepresentation not allowed unless term satis
J.J #erm restriting authority o% agent allowed De
•
J.6 Dislaimer o% responsibility %or statements by agent *remdean -ro#erties v 9ash Misrepresentation as to lettable oBe spae indued P to buy properties %rom D Dislaimer o% liability %or statements by D8s agent learly intended to exlude ontratual liability %or auray o% representation by agent '%rom the outset, has the right have %ull authority( gent had %ull authority o% D to say what they did say in doument Dislaimer %ell under s - had to pass ?reasonableness@ test $fetively exluded o • •
• •
J. $ntire agreement lauses lause that states that the written ontrat onstitutes the entire agreement and that ?no statement or representation made by either party have been relied upon by the other in agreeing to enter the ontrat.@ &homas Witter v &B- =ndustries (High *ourt) aving regard to substane o% lause, it does not prelude laim %or misrepresentation +ubHet to test o% reasonableness in s . '%or une!ual bargaining power - see i% the lause exlude or limit liability( In the result, lause inefetive. 'usually will pass i% they have e!ual bargaining power ommerial ontext( •
•
•
c Watford lectronics v Sanderson (*A) "lauses outside sope o% s 's only appliable i% there is ationable misrepresentation( nowledgment o% non3reliane 'no ationable misrepresentation( may give rise to evidential estoppel 'estopped %rom denying lause( Prevents ationable misrepresentation %rom arising as it annot be asserted that there was misrepresentation based on reliane o $lse on4its with intention and agreement o% parties that it does not apply •
•
•
A@A Sun %ife Services -lc v *am#bell /artin "lear words re!uired to exlude liability %or misrepresentation. •
•
•
#his an be done by statin+ that there ha&e 0een no representations madeC or that there has been no reliance on any representationsC or by an e
