misrepresentation

4 Eng v Harper

East v Mauer approved - BUT cant be hypothetical - must be a real business that C would have bought if it werent or the fraud

Smith New Court Securities

HL obiter took more flexible approach - even if shares have been sold on can buy identical shares - like money

Esso v Marden

REMEMBER can also sue for breach of contract - if statement = term of contract (collateral warranty) --> expectation damages for breach of contract - contractual warranty = factual statement made on crucial matter by party who had or professed to have special knowledge or skill with the intention of inducing the other party to enter the contract - compensated for having been induced to enter contract which turned out to be disastrous

Erlanger v New Sombrero Phosphate

although might not be poss to give back everything identical to how it was precontractually -can still allow recission and make allowances for changes

Car & Universal Finance v Caldwell

announcement of recission = notice and hence = date of recission - after this point rogue sold care - BUT not able to pass real title

Pearson v Dublin Corporation

cannot exclude liability for fraud

Archer v Brown

cannot pursue both remedies --> if would result in recovering twice over for same loss

Huyton

causal test for miserep - sufficient reliance if would have agreed but on different terms

JEB Fasteners v Marks Bloom

causal test for misrep - as long as takes 'real and substantive part' doesn't have to be 'decisive'

Peekay Intermark

clauses where parties acknowledge that either no representations were made or that they didnt rely on any representations = valid

Barton v County Natwest

compare causal test for misrep (JEB Fastners) and for fraud - sufficient for fraudulent representation that didnt make them change their mind after decision

Bristol + West BS v Mothew

contract merely voidable not void

Spice Girls v Aprilla World Service

contrast pure non disclosure cases with cases where misrep is inferred from conduct - here parties conduct --> misrep

Spence v Crawford

court will be more drastic in exercising discretionary powers in case of fraud than innocent misrepresentation (in terms of allowing rescission/making allowances for it)

Parabola investments v Browallia

date of discovery of fraud is not a cut off point for damages - any losses after that point also count

Derry v Peek

def of fraud - make statement to be acted upon by others which is false - know is false/make recklessly without care whether false --> liable in action of deceit

AXA Sun Life Services v Campbell Martin

entire agreement clauses - merely prevents c asserting collateral contractual terms -doesnt exclude liability for misrep

Leaf v International Galleries

example of lapse of time = bar to recission - reaslised not a constable 5 years later - t0o late

Carter v Boehm

exception to non disclosure - insurance contracts

Conlon v Smith

exception to non disclosure - partnership agreements

Lazarus Estates v Beasley

fraud unravels all

Sykes v Taylor Rose

had been murder in house - asked q -is there anything has a right to know about - said no - this was ok - not a misrep - distinction between non disclosure and misrep

With v O'Flanagan

if make a statement and find out not true --> have to correct it - otherwise continuing rep

Cleaver v Schyde Investments

importance of context in applying s3 misrep act - dont consider clause in isolation

Thomas Witter v TBP Industries

impossibiltiy of restoring status quo ante = bar to recession - here too much had happened to the business - new staff/pensions ect - not poss to rescind

Government of Zanzibar v British Aerospace

in contrast to Thomas witter (which said s2(2) available where rescission barred) said not available if rescission barrred --> NO CLEAR ANSWER

Clough v London and North Western Railway

in fraud case lapse of time not as significant - only abar to recision if dont act promptly once realise

Pankhania v Hackney LBC

judges unease with fiction of fraud in s2(1)- c must still mitigate his loss and damages should be assessed accordingly

East v Mauer

lost of opportunity damages available- (BUT still x expectation measure - case of if statement hadnt been made - would have bought other business --> (here hairdressers) --> can claim for lost opportunity

Notts Patent Brick & Tile Co v Butler

misrep can be inferred from silence on matter - in this case told literal truth but misleading --> misrep

Robbins v Jones

no duty to disclose anything pre contratually

Street v Coombes

not a case of affirmation - realised finances not true - continued buisness - eventually pleaded misrep - allowed to rescind

William Sindall Plc v Cambridgeshire CC

obiter guidance about awarding under s2(2) - s2(1) = damage flowing from having entered the contract, s2(2) = damage caused by DONT GET THIS

Dolby v Olby

remoteness - unlike for negligence all losses flowing directly from fraud - dont have to be forseeable

Oakes v Turquand

rescission to acquire shares after started to wind up company barred - third parties would be prejudiced

Smith v Kay

statement must have been objectively material - ie would reasonable person have relied on it?

Royscot Trust v Rogerson

under s2(1) - damages for non fraudulent misrep - treated as if faridster