正在編輯用戶:Hinnia/Misrepresentation （章節）

=== 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