Pre contractual statements and misrepresentation
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Pre-contractual statements and misrepresentation. It is possible to view pre-contractual statements in more than one light: if the statement is PROMISSORY in nature it may be held to be part of the final contract – and be incorporated as a term of the contract

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Pre contractual statements and misrepresentation
Pre-contractual statements and misrepresentation

It is possible to view pre-contractual statements in more than one light:

  • if the statement is PROMISSORY in nature it may be held to be part of the final contract – and be incorporated as a term of the contract

  • if the statement is not promissory in nature then it is unlikely to be regarded as a term of the contract, rather just a REPRESENTATION OF FACT


Some basic preliminary terms
Some basic preliminary terms

Void

Voidable

Unenforceable


Pre contractual statements can be classified into one of 3 groups
Pre-contractual statements can be classified into one of 3 groups:

i. Mere ‘puffs’ of sales talk – for instance, a phrase such as, ‘you won’t regret buying this stereo from me’. Such phrases have NO LEGAL EFFECT – but are seen as sales talk.

ii. Representations – statements of fact made prior to the contract that do not become terms of the contract

iii.Terms – statements made prior to the contract that are held to be actual terms of the contract


Why it is important to decide if a pre contractual statement is a term or representation
Why it is important to decide if a pre-contractual statement is a term or representation

Whether a pre-contractual statement is regarded as a mere representation or a term is significant in relation to any damages that might be payable to the wronged party and the wronged party’s ability to set the contract aside.


Term or misrepresentation
Term or misrepresentation? is a term or representation

The courts make use of various guidelines in an attempt to work out what was the INTENTION of the person making the statement – and they do this OBJECTIVELY. If they consider the person making the statement intended to bind himself in the future by his statement, then this element of ‘futurity’ is likely to encourage the courts to see the statement as being a term of the final contract.


Verifying the truth of a statement
Verifying the truth of a statement is a term or representation

Schawel v Reade 1913

Ecay v Godfrey 1947


Importance of the statement
Importance of the statement is a term or representation

Couchman v Hill 1947


Specialist knowledge
Specialist knowledge is a term or representation

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd 1965

Oscar Chess Ltd v Williams 1957


Parole evidence rule
Parole evidence rule is a term or representation

Routledge v McKay 1954


Definition of representation
Definition of representation is a term or representation

  • A representation is nicely defined in Cheshire, Fifoot and Furmston’s Law of Contract 14th edition at page 293 as:12

  • ‘a statement of fact made by one party (the representor) to the other (the representee) which, while not forming a term of the contract, is yet one of the reasons that induces the representee to enter into the contract’.

  • A MISrepresentation is simply a representation that is UNTRUE.


Key cases
Key Cases is a term or representation

  • McInery v Lloyd’s Bank ltd 1974

  • Gordon v Sellico 1986

  • Spice Girls Ltd v Aprilia World Service BV 2000

  • Keates v The Earl of Cadogan 1851

  • Dimmock v Hallett 1866

  • Bisset v Wilkinson 1927

  • Smith v Land & House Property Corp 1885

  • Esso Petroleum Co Ltd v Mardon 1976.

  • Edgington v Fitzmaurice 1885

  • Solle v Butcher 1950

  • Horsfall v Thomas 1862

  • Museprime Properties Ltd v Adhill Properties Ltd 1990

  • Attwood v Small 1838

  • Redgrave v Hurd 1881


McInery v Lloyd’s Bank Ltd 1974 is a term or representation

- a representation will not be actionable just because the representee interprets it as being false – it will only be actionable if on a ‘reasonable’ interpretation the statement, which can be by words or conduct, could be interpreted as being false, an objective test.

Gordon v Sellico 1986

This case therefore shows that ‘conduct’ can amount to a misrepresentation


Spice girls ltd v aprilia world service bv 2000
Spice Girls Ltd v Aprilia World Service BV 2000 is a term or representation

The Court of Appeal held that liability under section 2 (1) of the Misrepresentation Act 1967 depended on four elements:

a) a misrepresentation made by one person to another;

b) a subsequent contract between them;

c) consequential loss and

d) an absence, at the time the contract was made, of a belief or reasonable grounds for belief in the truth of the facts represented.


Points from spice girls case
Points from Spice Girls case is a term or representation

  • The false statement of fact can be by conduct as well as words

  • the false statement of fact must be material

  • the Misrepresentation Act 1967 only applies when the parties have made a contract

  • the onus of proof is reversed


Keates v the earl of cadogan 1851
Keates v The Earl of Cadogan 1851 is a term or representation

This case is generally cited as authority for the fact that there is NO GENERAL RULE OF DISCLOSURE – which means that you do not have to tell the other party things that would affect his decision to contract.


Dimmock v hallett 1866
Dimmock v Hallett 1866 is a term or representation

Demonstrates 2 points:

  • ‘fertile and improvable’ as a statement was mere sales talk

  • ‘was lately in the occupation of ….’ was a half truth and amounted to a false representation that induced the purchaser to buy the farm


Beliefs and opinions
Beliefs and opinions is a term or representation

Are not normally actionable but may be if the person stating them does not genuinely hold that opinion or belief - Bisset v Wilkinson 1927 - one has to take account of:

  • the material facts

  • the knowledge of each party

  • their relative positions

  • the actual words used

  • and the actual condition of the subject matter



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