正在編輯用戶:Hinnia/Misrepresentation （章節）

== Remedies ==

=== Damages ===

==== Fraudulent Misrepresentation (Deceit) ====

* '''''Derry v. Peek''''' test
* Measure: All direct losses flowing from entering contract, whether foreseeable or not
* Contributory negligence: Defence not available

==== Negligent Misrepresentation (Common Law) ====

* Must prove duty of care, breach, causation.
* Measure: Foreseeable losses
* Contributory negligence: Defence available

==== Misrepresentation Act 1967, s. 2 ====

* Subsection (1)
** Relationship with deceit: Largely supersedes deceit for contracting parties
** When other claims preferable:
*** No contractual relationship; 
*** claimant careless (avoid contributory negligence); 
*** court may hesitate given draconian consequences; 
*** misrepresentation in contract itself; 
*** third-party misrepresentor; 
*** consumer regulation applies

* Subsection (2)
** Court discretion to award damages in lieu of rescission for non-fraudulent misrepresentation
** Court may declare contract subsisting and award damages if equitable, having regard to:
*** Nature of misrepresentation;
*** Loss if contract upheld;
*** Loss rescission would cause other party
** William Sindall v. Cambridgeshire CC: Used to stop escape from bad bargain

* Measure of damages: Different from s.2(1)
** Should compensate for loss from property not being as represented;
** "should never exceed sum would awarded if representation warranty"

* Jurisdiction: Only if entitlement to rescind exists at hearing/purported rescission date ('''''Salt v. Stratstone''''') 

=== Rescission ===

* 1) Nature of Rescission
** Available for all types of misrepresentation (fraudulent, negligent, innocent) 
** Sets aside contract for all purposes, retrospectively and prospectively .
*** Aim: Restore parties to pre-contract position .
** '''''Redgrave v. Hurd (1881)'''''
*** Establishes rescission available for innocent misrepresentation
*** Negligence of representee no defence.
* 2) Misrepresentation Incorporated as a Term of the Contract
** Section 1(a) Misrepresentation Act 1967
*** Right to rescind survives
*** Even if statement incorporated as term ('''''Salt v. Stratstone''''').
** Claimant may have both remedies.
* 3) The Claimant’s Choice Between Seeking Rescission and Claiming Damages for Fraud
** '''''Archer v Brown''''' [1984] 2 All ER 267
** No double recovery
* 4) Rescission and an Indemnity
** '''''Whittington v. Seale-Hayne''''' (1900)
*** Land is told to be perfect and safe condition
*** Can rescind contract
*** Gets an indemnity: Can get back the property tax
*** However can’t get damages for dead chickens
** After rescission
** Can bring personal restitutionary claim ("indemnity") to recover benefits conferred under contract
*** However does not cover consequential losses.
* 5) Restrictions on the Right to Rescind
** (a) Restitution Impossible
*** Common law strict: Must restore exact benefit ('''''Clarke v. Dickson)'''''.
*** Equity flexible ("practical justice"): '''''Erlanger v. New Sombrero Phosphate Co''''' – can account for profits/deterioration.
*** Halpern v. Halpern: Aim is prevent unjust enrichment of claimant, not perfect restoration.
*** Salt v. Stratstone: Monetary awards can achieve substantial restoration; barrier reduced.
** (b) Affirmation/Lapse of Time, Estoppel
*** Affirmation: After discovering truth, electing to continue contract.
*** Lapse of Time/Laches:
****   Salt v. Stratstone: "Lapse of time on its own can [not] be a bar."
***** Now part of laches – bar if lapse of reasonable time makes it inequitable to grant rescission.
****   Leaf v. International Galleries [1950] (5-year delay) may require reconsideration under this approach.
** (c) Third Party Rights
*** If bona fide third party purchaser for value acquires goods before rescission, right lost.
*** Car and Universal Finance Co v. Caldwell [1965]
**** A enters contract with B on basis of misrep
***** A has right to rescind contract
***** Contract is voidable
**** B enters contract with C
***** Bona fide purchaser for value without notice 付出價值及沒有被知悉的真誠購買人
***** Didn’t know about the wrong
**** A’s contract with B cannot be voided
*** Phillips v Brooks
**** Jeweller sells to Mr North
**** North claimed to be another person
**** North pawns jewellery to Brooks
**** Brooks doesn’t know anything about the fraud
**** Jeweller cannot rescind 
**** Intervention of 3rd party rights

=== Exclusion of Liability for Misrepresentations. ===

* Contractual exclusions or restrictions of liability or remedies for misrepresentations
** Only effective to the extent that they are reasonable
* Under s. 11(1) of the Unfair Contract Terms Act 1977:
** s. 3(1) If a contract contains a term which would exclude or restrict—
*** (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or
*** (b) any remedy available to another party to the contract by reason of such a misrepresentation,
** Term has no effect unless satisfies requirement of reasonableness
*** Stated in s11(1) of the Unfair Contract Terms Act 1977
**** It is for those claiming that the term satisfies that requirement to show that it does.
* Fraud: Cannot exclude liability for own fraudulent misrepresentation (S Pearson v. Dublin Corp).
* Agent's fraud: Unclear if excludable; would require "clear and unmistakable terms" (HIH Casualty v. Chase Manhattan Bank).
* "No-Reliance" & "Entire Agreement" Clauses:
** First Tower Trustees Ltd v. CDS: Clause stating no reliance placed on representations caught by s.3 and subject to reasonableness test.
*** Policy: s.3 aims to prevent escaping liability unless reasonable; substance over form.
** Cremdean Properties v. Nash: "Ingenuity of draftsman" won't defeat s.3's purpose
*** Drafting: Safer to exclude "any representation other than one made fraudulently"
** IFE Fund SA v GSI International [2007] EWCA Civ 811
*** Foundation for liability for negligent misstatements demonstrates that
**** Where the terms on which someone is prepared to give advice or make a statement negatives any assumption of responsibility
***** No duty of care will be owed
**** Although there might be cases where the law would impose a duty by virtue of a particular state of facts
***** Despite an attempt not “to assume responsibility”,
**** Relationship between GSI either as arranger or as vendor would not be one of them.

Note that s. 3 does not apply to a contract between a consumer and a trader:

* ''Misrepresentation Act 1967, s3(2) This section does not apply to a term in a consumer contract within the meaning of Part 2 of the Consumer Rights Act  ''
* s. 62 Consumer Rights Act 2015 provides that an unfair term of a consumer contract between a trader and a consumer is not binding upon a consumer. 
* ‘Consumer’ is defined in s. 2(3) as ‘an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession’;
* ‘trader’ is defined in s.2(2) as ‘a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf’.
* s. 62 of the Consumer Rights Act 2015 provides the means by which it is to be determined if a term is unfair.