Law 5110 Lecture Notes - Lecture 19: All England Law Reports, Hackney London Borough Council, Kleinwort Hambros
Lecture 19
Misrepresentation
What is a misrepresentation?
A false statement of fact which induces the other party to enter into the contract. An
‘actionable’ misrepresentation makes the contract voidable: valid until avoided.
- Misrepresentation is pre-contractual = occurs before contract is made
- Effect; contract is voidable
- Void = automatically of no effect from the very beginning
o The contract is treated as if it had never been made
- Voidable = may be set aside by one party
o The setting aside is not automatic but requires action. Once the contract is set
aside, it is treated as if it had never been made
Misrepresentation – structure
- Distinguish a term of a contact from a representation
- Identify an actionable misrepresentation
- Distinguish between the different types of misrepresentation
- Analyse the remedies for misrepresentation
Term or Representation?
Whether a statement is a representation or a term is primarily a question of the intention of
the parties - Heilbut, Symons & Co. v Buckleton, [1913] AC 30 – and this is viewed objectively.
- In writing
- Lapse of time
- Specialist skill/knowledge
Where the parties’ intention is unclear, a number of guidelines may help to decide whether
or not the parties had such intention, including:
1 The timing of the statement: Routledge v McKay, [1954] 1 WLR 615.
On the sale of a motorbike the seller made a statement about which model it was. The
contract was concluded a week later. The statement was a representation not a term.
2 Whether an opportunity to verify the statement is given to the person to whom it is
made; Ecay v Godfrey (1947) 80 Lloyd’s Rep 286.
A statement was made by a prospective seller of a boat that the boat was sound but he
suggested to the buyer that he have the boat surveyed. The court found the statement
was a representation not a term.
3 The importance of the statement is made clear to the maker: Bannerman v White,
(1861) 10 CBNS 844
A prospective buyer of hops made it clear to the seller that if the hops had been treated
with sulphur, he would not buy them. The subsequent statement by the seller that they
had not been treated with sulphur was a term not a representation.
