Misrepresentation

Misrepresentation

1. 1. if it puts one party into a better situation - it may be a warranty - Osscar v W

   • if not it is a mere misrepresentation

2. 2. misrepresentation has to be 5 things

   • false
     • dimmit v hallot- cannot be a mere sales puff, has to be a false statement
   • fact
     • bissit v p - the fact cannot be a mere statement of opinion
       • esso v p it was seen that statement of opinion was a fact as they had special knowledge
   • addressed
     • sydney - addressed to mislead the innocent party and for the message to be passed on
   • intend
     • peek v gury- was intented to be acted upon
   • induce
     • eddinton- induce the mislead party into joining the contact

3. once all the five characteritics of a misrepresentation have been found

   • need to establish which type of misrepresentation it is
     • fradulant
       • Doyle v Peek
         • where FM established
           • must be made 1. knowlingly 2. recklessly 3. without belief in its truth - burden of proof lies with claimant
         • remedies
           • innocent party able to recine and claim damages by tort of deciet
     • negligent
       • at common law
         • hedly v bryne - obiter has a duty to care
       • by statue
         • Howard case- made without reasonable grounds of belief
       • remedies
         • only claim forseeable losses s 2 (1)
     • innocent
       • where there can be reasonable grounds for belief in the truth of the statement
       • remdies
         • misrep act 2 (2) can only get recission
     • recession - equitable remedy
       • limitations lie on liability
         • affirmation - continue - expressly or actions
         • lapse of time - for fm (runs out at time of fraud) and others date of contract itself
         • rights of third parties- not available to them