Misrepresentation - problem question structure PDF

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answering problem questions on misrepresentation: is there a contract? offer & acceptance need to be present. is the statement a term or a representation? a. term of the contract – part of the promise in the contract. remedy = breach of contract (Smith v Hughes) b. representation – statement...

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answering problem questions on misrepresentation: 1. is there a contract? offer & acceptance need to be present. 2. is the statement a term or a representation? a. term of the contract – part of the promise in the contract. remedy = breach of contract (Smith v Hughes) b. representation – statement of fact which does not amount to a term of the contract. There is no promise. remedy = rescission how to determine ‘term’ or representation: Parol evidence rule – written in the contract = term. not written in the contract = representation Specialist skill or knowledge – if the representor has special skill or knowledge, the statement is more likely to be a term (Oscar Chess v Williams) Reliance on the statement – if the representee relies on the statement and indicates that the statement is of importance an otherwise would not have agreed to the contract, statement is a term (Bannerman v White) Time lapse – the longer the time between making the statement and entering the contract, the more likely it will be a representation (Routledge v Mckay) if statement is representation: 3. define what a misrepresentation is – an unambiguous, false statement of fact which induces A into a contract with B. A makes an induced mistake. a. identify the false statement of fact b. note the difference between misrepresentation and misstatement: i. misrepresentation – false statement of fact that induces A into contract with B. scope of damages is much wider – MA 1967 ii. misstatement – B carelessly makes statement to A, where the relationship between A and B is such that B owes a duty of care. A has to show there relationship was such and there was detrimental reliance on the part of A that caused them to suffer a loss. damages limited to what was reasonably foreseeable iii. It is much easier to prove a claim for negligent misrepresentation rather than negligent misstatement as for the former the Claimant will only need to show that the statement was not true / false and the defendant has to prove this is not the case or that he reasonably believed it was true. Whereas with a claim for negligent misstatement the Claimant will have to show that a duty of care actually existed (which can be difficult if there is no contract in place). c. establish what is needed for this misrepresentation to be actionable - C must prove (1) a statement (2) of fact (3) made by or on behalf of D (4) to C (5) that is false (6) that is material and (7) that induced C to enter into the contract

4. establish what type of misrepresentation it is? a. define

5. is there an exclusion/limitation of liability? is it reasonable under s11 unfair contract terms act? a. 6. what remedies are available? a. rescission is the primary remedy b. are there any bars to recission? c. is there the possibility of claiming under MA, 1967 Answer structure: Intro: Advising x requires an examination of misrepresentation and its remedies. Namely, what constitutes a misrepresentation and if there is a misrepresentation present, what remedies are available to x. para 1: is the statement a term or a representation? a. term of the contract – part of the promise in the contract. remedy = breach of contract (Smith v Hughes) b. representation – statement of fact which does not amount to a term of the contract. There is no promise. remedy = rescission how to determine ‘term’ or representation: Parol evidence rule – written in the contract = term. not written in the contract = representation Specialist skill or knowledge – if the representor has special skill or knowledge, the statement is more likely to be a term (Oscar Chess v Williams) Reliance on the statement – if the representee relies on the statement and indicates that the statement is of importance an otherwise would not have agreed to the contract, statement is a term (Bannerman v White) Time lapse – the longer the time between making the statement and entering the contract, the more likely it will be a representation (Routledge v Mckay) Para 2: It is necessary to consider what constitutes a misrepresentation. define misrepresentation (include citation) what type of misrepresentation is it? These elements need to be present in order for x to make a successful claim against y. Does y’s statement satisfy all the requirements? also talk about opinions, half-truths etc. and the law’s approach? State why, based on the facts, they do or do not apply look at each of the elements in turn – create a new heading for each all these elements are satisfied para 3 if all the elements are not satisfied, there is no misrepresentation.

BUT do not stop here. consider alternative. what would happen if there was a misrepresentation – remedies. para 4 what is the remedy for misrepresentation are there any bars MA, 1967 – x can both rescind contract and claim damages but where rescission is barred, can claim damages. what does the act say? what needs to be shown? are there any defences? what needs to be shown? para 5: can x make a claim or not? why/why not?

answering problem questions on undue influence: intro: Advising x requires an examination of undue influence. Namely, was x subject to undue influence by y and is the agreement between the bank and x tainted by y’s undue influence. if other vitiating factors are present, why are the other vitiating factors not relevant i.e duress, unconscionable bargain, misrepresentation Always explain why duress is/is not relevant. para 1: define undue influence what makes an actionable claim? what needs to be proved? how does this need to be proved? does x use actual undue influence or presumed? para 2: explain proof in more detail. go through each factor in turn. para 3: rebutting the presumption (if talking about presumed undue influence) para 4: husband and wife scenario – alternative consideration. why might the court not allow the claim? does this apply to the facts? why/why not? para 5: banks discharge of notice do they discharge notice properly? does the lawyer provide appropriate advice?

conc. will x be able to make claim? why/why not?...