正在編輯用戶:Hinnia/Misrepresentation （章節）

=== 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.