Misrepresentation

This article is about a legal term. For the sociological one, see Misrepresentation (sociology).

Misrepresentation is a contract law concept. It means a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.

According to Gordon v Selico (1986) 18 HLR 219 it is possible to make a misrepresentation either by words or by conduct, although not everything said or done is capable of constituting a misrepresentation. Generally, statements of opinion or intention are not statements of fact in the context of misrepresentation.^[1] If one party claims specialist knowledge on the topic discussed, then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact.^[2]

Representation is not a term

Contract law
Part of the common law series
Contract formation
Offer and acceptance · Mailbox rule Mirror image rule · Invitation to treat Firm offer · Consideration
Defenses against formation
Lack of capacity Duress · Undue influence Illusory promise · Statute of frauds Non est factum
Contract interpretation
Parol evidence rule Contract of adhesion Integration clause Contra proferentem
Excuses for non-performance
Mistake · Misrepresentation Frustration of purpose · Impossibility Impracticability · Illegality Unclean hands · Unconscionability Accord and satisfaction
Rights of third parties
Privity of contract Assignment · Delegation Novation · Third party beneficiary
Breach of contract
Anticipatory repudiation · Cover Exclusion clause · Efficient breach Deviation · Fundamental breach
Remedies
Specific performance Liquidated damages Penal damages · Rescission
Quasi-contractual obligations
Promissory estoppel Quantum meruit
Related areas of law
Conflict of laws · Commercial law
Other common law areas
Tort law · Property law Wills, trusts and estates Criminal law · Evidence
v · d · e

As enacted by the Misrepresentation Act,^[3] the statement in question may constitute a representation even if later incorporated into the contract as a term (i.e. a warranty, condition or innominate term).

An alternative approach, applied in parallel but in exclusivity to, is to find a collateral contract by interpreting the representation as a promise accompanied by some sort of consideration (see Heilbut, Symons & Co. v Buckleton [1913] A.C. 30 (H.L.)). The collateral contract will have the effect of adding the representation as a term to the contract.

If the representation is found to be a term then the normal remedies for breach of contract apply.

Criteria for Misrepresentation

Misrepresentation is one of several vitiating factors which can affect the validity of a contract. A misrepresentation occurs when one party makes a false statement with the intention of inducing another party to contract. For an action to be successful, some criteria must be met in order to prove a misrepresentation. These include:

• A false statement of fact has been made,
• The statement was directed at the suing party and
• The statement had acted to induce the suing party to contract.

Distortion of Fact

A representor may make a statement which prima facie is technically true; however this may tell only half the story. If a statement of fact is made but the representor fails to include information which would significantly alter the interpretation of this fact, then a misrepresentation may have occurred. In Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, Krakowski agreed to enter into a contract to buy a shop premises from Eurolynx as long as a 'strong tenant' had been organised. The contract proceeded on the grounds that such a tenant had been arranged. Unbeknown to Krakowski, Eurolynx had entered into an additional agreement with the tenant to provide funds for the first three months rent to ensure the contract went ahead. When the tenant defaulted on the rent and subsequently vacated the premises, Krakowski found out about the additional agreement and rescinded the contract with Eurolynx. It was held that Eurolynx’s failure to disclose all material facts about the 'strong tenant' was enough to constitute a misrepresentation and the contract could be rescinded on these grounds.

Learned Falsity

The negotiating stage of a contract can be a time consuming process. Because of this, new information may arise and circumstances may change. This can result in two situations which can result in a misrepresentation if silence is kept. The first is if the representor subsequently discovers that the statement was false, the second being if the statement becomes false at a later time. If a statement is made and it is subsequently made known to the representor that it is false, it would obviously be inequitable to allow the representor to remain silent with the new information. In Lockhart v. Osman [1981] VR 57, an agent had advertised some cattle as being “well suited for breeding purposes”. Later on it was discovered that the stock had been exposed to a contagious disease which affected the reproductive system. It was held that the agent had a duty to take remedial action and correct the representation. The failure by the agent to take such measures resulted in the contract being set aside. Should a statement be made which is true at the time, but subsequently becomes untrue due to a change in circumstances, the representor is obligated to amend the original statement. In With v O’Flanagan [1936] Ch. 575, the plaintiff entered into a contract to purchase O’Flanagan’s medical practice. During negotiations it was said that the practice produced an income of £2000 per year. Before the contract was signed, the practice took a downward turn and lost a significant amount of value. After the contract had been entered into the true nature of the practice was discovered and the plaintiff took action in misrepresentation. In his decision, Lord Wright said "...a representation made as a matter of inducement to enter into a contract is to be treated as a continuing representation."^[4]. This means that the representation must be true till the contract is made; creating the obligation mentioned above and accordingly the plaintiff’s petition was successful.

Special Relationships

Some relationships also provide that silence can form the basis of an actionable misrepresentation.

• Fiduciary Relationships

A fiduciary relationship is one of trust and confidence; it involves one party acting for the benefit of another. For this reason, when entering into a contract, it is important for a fiduciary to disclose all facts which could be considered material even if not expressly asked about.^[5] In Lowther v Lord Lowther (1806) 13 Ves Jr 95, the plaintiff handed over a picture to an agent for sale. The agent knew of the pictures true worth yet bought it for a considerably lower price. The plaintiff subsequently discovered the pictures true worth and sued to rescind the contract. It was held that the defendant was in a fiduciary relationship with the plaintiff and accordingly assumed an obligation to disclose all material facts. Accordingly the contract could be rescinded.

• Contracts ‘Uberrimae Fidei’

A contract uberrimae fidei is a contract of ‘utmost good faith’. Similarly to fiduciary relationships, the parties are required to make known all material facts influencing the contract. Contracts uberrimae fidei usually arise when one party has knowledge which the other does not have access to. Contracts which are commonly considered to be of such a nature include contracts of insurance and family agreements. When applying for insurance, the person or entity must disclose all material facts so that the insurer can properly asses the risk involved with the offering of insurance. Since the insurer cannot have access to all information relating to the insured and their situation which could affect the risk involved, it is necessary for this disclosure so that both parties are entering into the contract on equal grounds. Lord Blackburn addressed the issue in Brownlie v Campbell (1880) 5 App Cas 925 when he noted "...the concealment of a material circumstance known to you...avoids the policy."^[6] Another contract considered uberrimae fidei is that of family agreements. In Gordon v Gordon (1821) 3 Swan 400, two brothers had reached an agreement regarding the family estate. The elder brother was under the impression that he was born out of wedlock and thus not their fathers true heir. The agreement was reached on this basis. The elder brother subsequently discovered that this was not the case and that the younger brother had knowledge of this during the negotiation of the settlement. The elder brother sued to set aside the agreement and was successful on the grounds that such a contract was one of uberrimae fidei and the required disclosure had not been executed.

Statement of Fact

It is a general requirement that for an action in misrepresentation to proceed, that the statement in question be one of present or past fact. This has its grounding in that only facts can be distinguished as being true or untrue at the time they are made.

Opinion

Statements of opinion are not often seen as sufficient to produce a misrepresentation^[7]. Obviously it would be unreasonable to treat opinions in the same manner as truths as opinions can be based purely on personal beliefs with no additional foundation. There are however some exceptions where opinions can give rise to an action in misrepresentation:

• where an opinion is expressed yet this opinion is not actually held by the representor,
• where it is implied that the representor has facts on which to base the opinion^[8],
• or where one party should have known facts on which such an opinion would be based^[9].

Intention and the Future

Statements which are made in relation to the intention of a party or the occurrence of some event in the future do not constitute misrepresentations should they fail to eventuate. This is because at the time the statements were made they can not be categorised as either true or false. However, similarly to the first point above, an action can be brought if the intention never actually existed. This can be illustrated by the decision in Edgington v Fitzmaurice (1885) 29 Ch. D. 459, which deals with a statement of intention by the directors of a company to use loaned money to alter company buildings and make purchases to expand the company’s operating options. It was found that the directors actually intended to repay current debts and according it was held by the judges that the contract was voidable^[10].

Law

Statements of law were, in the past, considered to be free from claims of misrepresentation because it is equally accessible by both parties and is "...as much the business of the plaintiff as of [the defendants] to know what the law [is]."^[11]. This has since changed and it is now more recognised that statements of law should be treated as akin to statements of fact rather than occupy a special isolation^[12]. As stated by Lord Denning "...the distinction between law and fact is very illusory."^[13].

Statement to the Misled

An action in misrepresentation can only be brought by a representee. This means that only those who were an intended party to the representation can sue. This principle can be seen in Peek v Gurney (1873) LR 6 HL 377, where the plaintiff sued the directors of a company for indemnity. The action failed because it was found that the plaintiff was not a representee (an intended party to the representation) and accordingly misrepresentation could not be a protection. It is not required that in order to be a representee, the representation must be received directly. It is sufficient that the representation was made to another party with the intention that it would be made known to a subsequent party and ultimately acted upon by them as a representee^[14].

Types of misrepresentation

Four types of misrepresentations are identified with different remedies available:

• Fraudulent misrepresentation occurs when one makes representation with intent to deceive and with the knowledge that it is false. An action for fraudulent misrepresentation allows for a remedy of damages and rescission. One can also sue for fraudulent misrepresentation in a tort action. Fraudulent misrepresentation is capable of being made recklessly.^[15]
• Negligent misrepresentation at common law occurs when the defendant carelessly makes a representation while having no reasonable basis to believe it to be true. This type of misrepresentation is relatively new and was introduced to allow damages in situations where neither a collateral contract nor fraud is found. It was first seen in the case of Hedley Byrne v Heller [1964] A.C. 465 where the court found that a statement made negligently that was relied upon can be actionable in tort. Lord Denning in Esso Petroleum Co. Ltd. v Mardon [1976] Q.B. 801 however, transported the tort into contract law, stating the rule as:

if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable

• Negligent misrepresentation under Statute, enacted by the Misrepresentation Act 1967. When dealing with a negligent misrepresentation it is most lucrative^[16] (joint with fraudulent misrepresentation, Contributory Negligence notwithstanding^[17]) for an action to be brought under statute law as the burden of proof that is required passes to the person who made the statement. So it is for the person who made the negligent statement to prove that the statement was either not one of fact but opinion and that "had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true"^[18] - the so-called innocent defence.
• Innocent misrepresentation (Derry v. Peek)occurs when the representor had reasonable grounds for believing that his or her false statement was true.^[19] Prior to Hedley Byrne, all misrepresentations that were not fraudulent were considered to be innocent. This type of representation primarily allows for a remedy of rescission, the purpose of which is put the parties back into a position as if the contract had never taken place. Section 2(2) Misrepresentation Act 1967, however, allows for damages to be awarded in lieu of rescission if the court deems it equitable to do so. This is judged on both the nature of the innocent misrepresentation and the losses suffered by the claimant from it.

Misrepresentation (in India under IPC section-90)

In India, the federal laws defines misrepresentation under "Misconception Of Fact". This is dealt with under the Indian Penal Code in Section 90, which states:

Consent given firstly under fear of injury, and secondly under a misconception of fact, is not consent at all.

That is what is explained in the first part of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of India and other countries. The factors set out in first part of Section 90 are from the point of view of the victim; the second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge of - or reason to believe that - the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both parts should be cumulatively satisfied. In other words, the Court has to determine whether the person giving the consent has done so under fear or misconception of fact; the court should also be satisfied that the person doing the act (i.e. the alleged offender) is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.

Remedies

Rescission

Main article: Rescission

Generally, the effect of misrepresentation is that it makes the contract voidable not void ab initio. This is important for two reasons. Firstly because the representee can continue to be bound by the contract at his or her will. Secondly because the transactions and effects of the (voided) contract are recognised as to have taken place, therefore if a party transfers title of property to a third party of which the former only holds title to pursuant to the voided contract, the third party can retain legal title.^[20] Rescission can be done either by informing the representor or by requesting an order from the court. There are certain circumstances where rescission is not possible though. The idea behind rescission is that the parties are restored to the positions they were before entering into the contract. Therefore, if this is not possible, rescission is not an option.^[21]

If the representee discovers the misrepresentation and fails to take steps to avoid the contract, then he may not be able to rescind it.^[22] The time limit for taking such steps varies depending on the type of misrepresentation. In cases of fraudulent misrepresentation, the time limit runs until when the misrepresentation ought to have been discovered, whereas in innocent misrepresentation, the right to rescission may lapse even before the representee can reasonably be expected to know about it.^[23]

In certain circumstances, third party rights may interfere with rescission and render it impossible. For example, if B contracts with A to sell a house with a misrepresentation and then A sells the house to C, the courts are not likely to permit rescission as that would require C to give up the house.

In England and Wales, under Misrepresentations Act 1967 s. 2(2) of the Misrepresentation Act 1967, the court has the discretion to award damages instead of rescission.

Damages

In cases of fraudulent misrepresentation, a claim for damages is under the tort of deceit, making the damages tortious, in other words, only actual losses are recoverable. If the losses are calculated under the Misrepresentation Act 1967, damages for misrepresentation are calculated as if the defendant had been fraudulent, even if he has been only negligent. This is a wider scope than usual tortious liability, as it protects the claimant's loss even if not reasonably foreseeable. Inclusion of the representation into the contract as a term will leave the remedy for breach in damages as a common law right. The difference is that damages for misrepresentation usually reflect C's reliance interest, whereas damages for breach of contract protect C's expectation interest, although the rules on mitigation will apply in the latter case. In certain cases though, the courts have awarded damages for loss of profit, basing it on loss of opportunity.^[24]

See also

• False pretenses—related criminal law term
• Misrepresentation in English law

Authorities

1. ^ See Bisset v Wilkinson [1927] AC 177.
2. ^ See Esso Petroleum Co Ltd v Mardon [1976] 2 Lloyd's Rep 305.
3. ^ Misrepresentation Act 1967 s1(a): "Where a person has entered into a contract after a misrepresentation has been made to him, and the misrepresentation has become a term of the contract, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to butt the provisions of this Act"
4. ^ With v O’Flanagan [1936] Ch. 575, 584.
5. ^ See, eg, Davies v. London & Provincial Marine Insurance Co (1878) 8 Ch. D. 469, 474. Justice Fry commented on the responsibilities of a fiduciary ”…they can only contract after the most ample disclosure of everything…”
6. ^ Brownlie v Campbell (1880) 5 App Cas 925, 954.
7. ^ See, eg, Bisset v Wilkinson [1927] AC 177.
8. ^ See, eg, Smith v Land & House Property Corp (1884) 28 Ch. D. 7.
9. ^ See, eg, Esso Petroleum v Mardon [1976] QB 801.
10. ^ Edgington v Fitzmaurice (1885) 29 Ch. D. 459, 479.
11. ^ Beattie v Lord Ebury (1872) LR 7 Ch App 777, 803.
12. ^ See, eg, David Securities Pty Ltd v. Commonwealth Bank of Australia (1992) 175 CLR 353. While dealing with a mistake of law, similar reasoning should apply to a misrepresentation of law.
13. ^ Andre & Cie v Ets Michel Blanc & Fils [1979] 2 Lloyds LR 427, 430.
14. ^ See, eg, Commercial Banking Co (Sydney) Ltd v R H Brown & Co (1972) 126 CLR 337.
15. ^ See Derry v Peek (1889) 14 App. Cas. 337.
16. ^ Due to the 'fiction of fraud, see Guenter Treitel, G.H & Atiyah, P.S ‘Misrepresentations Act 1967’ (1967) 30 MLR 369
17. ^ applicable for statutory misrepresentation but not fraudulent per Lord Hoffman, Standard Chartered Bank v. Pakistan National Shipping Corp (No 2) [2003] 1 AC 959, para 17 and 18, respectively, at 967
18. ^ Misrepresentation Act 1967 s2(1)
19. ^ Misrepresentation Act 1967 s2(1)
20. ^ For legal reasoning application of the difference see Shogun Finance Ltd v Hudson [2004] 1 AC 919; Brooks, O & Dodd, A ‘Shogun: A Principled Decision’ (2003) 153 NLJ 1898
21. ^ See Erlanger v New Sombrero Phosphate Co (1878) 3 App. Cas. 308.
22. ^ See Long v. Lloyd [1958] 1 WLR 753
23. ^ See Leaf v International Galleries [1950] 2 KB 86.
24. ^ See East v Maurer [1991] 2 All ER 733.