In contract law, a misrepresentation
is when a party to a contract makes a
representation by words or conduct that conveys a
false or misleading understanding that has the
effect of inducing a party in entering 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 mispresentation. A finding of
misrepresentation allows for a remedy of
recission and sometimes damages depending on the
type of misrepresentation.
Representation
is not a term
To seek a remedy under misrepresentation it must
first be determined that the representation is
not a term of the contract (i.e. a warranty).
This is determined objectively by the trier of
fact by looking at the time that the
representation was made, the closer to the moment
of contract formation the more likely it is a
term, and if there is any mention of the
representation in writing that could be construed
as part of the contract.
As well, the Courts will often attempt 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.
Types
of misrepresentation
Fraudulent misrepresentation is
when the representation made with intent to
deceive and with the knowledge that it is false.
This is generally a difficult type of
misrepresentation to prove but allows for a
remedy of both damages and recission. An action
for fraudulent misrepresentation can also be
brought as a tort.
Innocent misrepresentation
is when the representation is made with an honest
belief that it is true. This type of
representation only allows for a remedy of
recision.
Negligent misrepresentation is
when the representation is made carelessly. This
class of misrepresentation is relatively new and
was introduced in order to allow for a remedy of
damages in situations where neither a collateral
contract nor fraud could be 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. 108
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
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