16/08/2017
Misrepresentation
Learning Outcome: To explain when an apparently valid agreement may be avoided because
of misrepresentation.
During the negotiations preceding a contract, statements are often made with a view to
inducing the other party to enter into a contract. If any such statement is false, the party
thereby misled is not agreeing to what is the true state of affairs and the contract may be
voidable for misrepresentation. Misrepresentation, therefore, may be defined as a false
statement of fact (not of law or a mere expression of opinion), made by one party to the
other before the contract, and made with a view to inducing the other party to enter into it.
The statement must have been intended to be acted upon, and it must actually have
deceived the other party and induced him to make the agreement.
Even a misleading half-truth can be a misrepresentation as when a person, completing a proposal
form for life assurance, stated that he had had two previous proposals accepted but omitted
to mention that several other proposals had been rejected [London Assurance v. Mansel
(1879)]. However, as a general rule, silence cannot amount to misrepresentation and there is no
duty to disclose facts, even though the silent party knows that the other party is deceiving himself.
In contracts for the sale of goods, this rule is known as caveat emptor (let the buyer beware).
There are two exceptional instances when there is a duty to disclose. The first is a duty
to correct statements which were true when made but, because the facts have changed, they
have subsequently become false and it would be unfair to let them stand. In With v.
O’Flanagan (1936), it was held that a true statement about the profits from a doctor’s practice
should have been corrected when the practice was sold some months later and in the
meantime the profits had fallen because of the doctor’s illness.
The other exception relates to contracts of the utmost good faith (uberrimae fidei), contracts
where one party alone possesses full knowledge of the material facts and must disclose
them. This applies in contracts of insurance with respect to material facts affecting
the decision whether to insure and in fixing the amount of the premium; in contracts for
the sale of land with regard to defects in title; in a prospectus inviting subscription for
shares as to matters required by statute; and in contracts for family arrangements.
Misrepresentations may later become incorporated as terms in the contract. If so, it will be
more advantageous for the party deceived to sue for breach of contract which, if successful,
gives an automatic right to damages. Damages will not normally be awarded for misrepresentation
if the person liable can prove that he reasonably believed that he was telling the truth.
It may not be easy to distinguish between contractual promises and mere representations, but
the courts will usually hold that, in contracts of sale, statements made by dealers are contractual
terms and statements made by sellers who are not dealers are representations.
46 STUDY MATERIAL C5
ESTABLISHING CONTRACTUAL OBLIGATIONS
In all instances of misrepresentation the contract is said to be voidable at the option of
the party deceived. The contract may be rescinded or ended, and the parties restored to
their original positions, for example by returning property transferred and money paid. The
right to rescind will be lost if such restoration is not possible as when property has been
resold or destroyed. The right will also be lost if the party deceived affirms the contract by
going on with it, knowing of the misrepresentation.
The right of rescission is ‘equitable’, which means that the courts can refuse to grant it
when they think that it would be unfair. The courts will insist that rescission be exercised
reasonably promptly once the misrepresentation has been or should have been discovered
by reasonable diligence; this rule is necessary to avoid uncertainty as to the ownership of
property which might or might not have to be returned. What is ‘reasonably promptly’ is a
question of fact. For things that change rapidly in value the time can be very short – sometimes
only weeks or less. Rescission will become effective from the time that it is made
public, for example by notifying the other party or, if this is not possible, informing the
police [see Car and Universal Finance Co. Ltd v. Caldwell (1965)].
A claim for damages is the other possible remedy for misrepresentation.
● Damages can be awarded if the claimant can prove that the misrepresentation was made
deliberately and fraudulently. It is the claimant who must prove that there has been fraud
and this is not easy. This is therefore not very common.
● Under the Misrepresentation Act 1967 s.2(1) damages may also be claimed unless the
defendant can prove that, up to the time of contracting, he believed that the statements
were true and had reasonable cause to believe so. This is sometimes referred to as negligent
misrepresentation. It has the great advantage that negligence is presumed, so that the
defendant must in effect prove his innocence.
● Under the 1967 Act s.2(2), damages may also be awarded at the court’s discretion, as an
alternative to rescission, even for innocent misrepresentation. If the defendant can prove his
innocence, however, the claimant has no right to damages. He can only ask the court to
exercise its discretion in his favour. This is not common.