WHAT IS MISREPRESENTATION?

Misrepresentation is defined as an erroneous statement of fact intended towards claimant. English

law does not regard the four forms of deception as a disclosure duty in contract negotiations: Fraud-
ulent, negligent, statutory, and innocent misrepresentation are all prohibited. Corrective steps are
required for various misstatements. Keates v Cadogan (1851)1 held that a contracting party is not re-
quired to provide information to the other party. In spite of this, representations must be made with
validity. Proportionality, the contractual agreement (the representation) created by the representa-
tives must desist from making any fallacious statements that would potentially cause anyone to en-
ter into a contract. Under the law of misrepresentation, the representation must be evidently false.
The statement may be communicated via both words and deeds. Its purpose is to establish if the
misinformation is actionable.

According to the question posed to Alan Honey and Andy Spider, it has been demonstrated that
there is a violation in the contract pertaining to the law of misrepresentation, thus the remedies and
claims that may be pursued are required to be determined from the question.

It is first necessary to determine if the existing facts account for an actionable representation before
deciding if it is indeed a misrepresentation. The so-called deceptive remark made during contractual
negotiations can be put into three different types. First, if the remark is a "mere puff," which implies
a commendatory phrase that is obscure and overly ambiguous and does not reveal to be a term
promise or a statement of truth, as defined in Dimmock v Hallet (1866)2. Second, an opinion state-
ment that cannot be considered a forgery.

In Bisset v. Wilkinson (1927)3, no liability was found for opinions, which can be defined as assertions
of belief rather than assertions of the fact. However, in the case of Esso Petroleum Ltd v Mardon
(1976)4, defendants can be held accountable for misrepresenting the facts, if their words become
statements of fact in the event that the representor has more knowledge and skill than the repre-
sented.

So, if the defendant has insufficient competence in such a topic, their remarks are only an opinion. In
Wales v Wadham (1977)5, a declaration of purpose is not the same as a statement of truth. Misrep-
resentation does not occur when the purpose is not carried out. However, Edgington v Fitzmaurice
(1885)6 held that an individual who made a mistake or difference in stating his purpose is guilty of
misrepresentation since his aim is a reality.

1 Ltd AA, “Keates v the Earl of Cadogan - 1851” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/keates-v-cadogan.php> accessed January 1, 2023
2 dimmock v hallett 1866 (Court of Appeal in Chancery)
3 Chen W, “Bisset v Wilkinson [1927] AC 177 - Case Summary” (lawprof.coApril 19, 2022)
<https://lawprof.co/contract/misrepresentation-cases/bisset-v-wilkinson-1927-ac-177/> accessed January 1,
2023
4 Chen W, “Bisset v Wilkinson [1927] AC 177 - Case Summary” (lawprof.coApril 19, 2022)
<https://lawprof.co/contract/misrepresentation-cases/bisset-v-wilkinson-1927-ac-177/> accessed January 1,
2023
5 Wales v Wadham [1977] 1 WLR 199
6 “Edgington v. Fitzmaurice” (Casebriefs Edgington v Fitzmaurice Comments)
<https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/misrepresentation/edgington-v-
fitzmaurice/> accessed January 1, 2023
An explicit false statement is a misrepresentation created by one party to another. The contract will
not be affected if a third party makes a false assertion. However, consider the exception in Barclays
Bank v O'Brien (1994)7, where the contact could not be enforced due to a third party's misrepresen-
tation (the husband). The message MUST be clear. McInerny v Lloyd's Bank Ltd (1974) 8 demon-
strated that equivocal remarks are not defined as actionable.

It was said in Beattie v Lord Ebury (1872)9 by Mellish LJ, that a statement that ‘something will be
done in the future cannot be either true or incorrect at the moment it is uttered'. It must be a factual
or legal declaration, it cannot be an opinion. It can be both a factual and legal statement (Pankhania
v Hackney LBC10). There are a variety of exceptions to this:

1) Where the defendant's view contradicts the real facts, and they already know that the opin-
ion is false, as in Smith v Land and House Property Corp. (1884)11
2) An expert opinion, for example, Esso Petroleum Co ltd v Mardon (1976)12, might be taken as
a statement of fact.
3) An unusual view can be considered as a false statement of fact, as in Edgington v Fitzmaurice
(1885)
Misrepresentations can be made by actions and possibly conduct. In the case of Walters v Morgan
(1861)13 Campbell LJ: ‘a nod or a wink, or a shake of the head, or a smile… which might influence the
price of the subject to be sold’ can amount to misrepresentation.’

It is impossible to misrepresent by silence (Keates v The Earl of Cadogan, 1851). However, there may
be exceptions to this general rule, if only half the facts are given e.g., Dimmock v Hallett (1866), then
the Original statement true, but in the event of circumstances changing, and the other party being
unaware of these changes, and lastly where there is good faith involved.

Although misrepresentation must lead other party to enter the contract it doesn’t have to be the
only reason the other party did, so it does not matter if the party that is being misrepresented
missed an opportunity to discover the truth.

Honey V Spider

7 Ltd AA, “Barclays Bank v O'Brien” (Law TeacherJuly 27, 2022) <https://www.lawteacher.net/cases/barclays-
bank-v-obrien.php> accessed January 1, 2023
8 Ltd AA, “McInerny v Lloyds Bank Ltd - 1974” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/mcinerny-v-lloyds-bank.php> accessed January 1, 2023
9 “Misrepresentation Flashcards | Quizlet” <https://quizlet.com/5449534/misrepresentation-flash-cards/> ac-
cessed January 1, 2023
10 Ltd AA, “Pankhania v Hackney LBC” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/pankhania-v-hackney-lbc.php> accessed January 1, 2023
11 “Smith v Land and House Property Corp..” (Case Brief Wiki)
<https://casebrief.fandom.com/wiki/Smith_v_Land_and_House_Property_Corp.> accessed January 1, 2023
12 Ltd AA, “Esso Petroleum v Mardon - 1976” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/esso-petroleum-v-mardon.php> accessed January 1, 2023
13 Walters v Morgan (1861) 45 E.R. 1056
In the case of the claimant investing in Spider, Honey was established and hired by the defendant to
back their production and invest. It was stated from the defendant that the production is ‘an un-
doubted triumph’ and was ‘an outstanding score with brilliant lyrics’.

After the claimant had purchased shares in the defendant’s company, it was found that the critic’s
statement was contradictory to what the defendant had initially stated. In fact, the critic had stated
that the show was neither ‘outstanding score’ nor had ‘brilliant lyrics’ and suggested that it they
should ‘give up on it at once’. The defendant also hired an independent report, which stated that
‘this would be a most foolish venture in the current economic climate, especially with tourism being
disrupted both by the weak pound and the Icelandic volcanic ash’, however, the defendant misin-
formed the claimant and stated that the report gave a ‘glowing commendation’. Nevertheless,
Honey did not check the authenticity of either of these statements.

The words 'an undoubted triumph' may have led to the claimant's enticement into the contract, but
it does not have to be the principal basis for the attraction, Edgington v Fitzmaurice (1885), ‘hence
the type of deception in inducement was fulfilled. This statement may be a mere puff, but it is not a
false statement, which means that the statement is not made to be true because the meaning of it is
too vague or ambiguous, and it is not suitable to include it inside the terms of a contract because it is
not specific enough to do so,’.

However, the term ‘An undoubted triumph – an outstanding score and brilliant lyrics.’ It may be in-
terpreted as a fact, and the defendant could potentially argue that his statements are only a mis-
leading expression of opinion, not of a fact that can lead to misrepresentation. We can then suggest
to the claimant that, despite the statement of opinion, the defendant is working as a composer of
musical comedies, which means he has a better understanding of this area of business than the
claimant, and he is aware that his opinion can act as a fact due to his experience. If only one party is
aware of the facts, the expression of view, while apparently an opinion, can also be a factual asser-
tion and an implicit provision of the contract.

The defendant will raise that the claimant was and invested in a business they had no knowledge of
and did not check the validity of the report he was presented with, the claimant can then use the
case of Redgrave v Hurd14 showing that the claimant’s failure in fact checking does not taint the
claim of misrepresentation or its remedies according to the case.

The defendant is in breach of the fraudulent misrepresentation; you can see this when he states that
the show is ‘An undoubted triumph’ but later was found out to be ‘a foolish venture’. Under the mis-
representation act 1967 Act 2(1)15 unless the defendant can proof that he has the burden of proof
has reasonable ground to believe and did believe at the time that the contract was made truthfully,
or innocent misrepresentation where the defendant believe that their statement towards Honey
were true as seen in the case of Howard Marine and Dredging Cov A Ogden and Sons (1978) 16.

POSSIBLE REMEDIES

14 Ltd AA, “Redgrave v Hurd - 1881” (Law TeacherJuly 27, 2022)

<https://www.lawteacher.net/cases/redgrave-v-hurd.php> accessed January 1, 2023
15 Participation E, “Misrepresentation Act 1967” (Legislation.gov.ukFebruary 1, 1978)
<https://www.legislation.gov.uk/ukpga/1967/7/section/2> accessed January 1, 2023
16 Ltd AA, “Howard Marine v Ogden - 1978 QB 574” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/howard-marine-v-ogden.php> accessed January 1, 2023
Rescission was once the primary remedies for misrepresentation; however, compensation has be-
come a far more regularly employed remedy in recent years, while rescission remains easily obtain-
able. Long v Lloyd (1958)17, a party may not be entitled to withdraw the contract if sufficient time has
passed since the misrepresentation was made, e.g., Leaf v International Galleries (1950) 18, a with-
drawal is only feasible if 'he can return what he has received'. As a result, if an item has been con-
sumed or destroyed, restitution is impossible, as in Clarke v Dickson (1858)19, and if goods are gained
via deception and subsequently sold on to a third party, the court need not anticipate the third party
to return the goods. When a contract has been misrepresented it is not necessarily rescinded by the
innocent party. Instead, it becomes unenforceable rather than void. In this case, the contract can re-
main effective, with the innocent party indicating that they should hope to rescind it. If the other
party cannot be alerted, Car and Universal Finance v Caldwell (1965)20demonstrates that you do not
have to notify the other party personally (the claimant contacted the police and the Automobile As-
sociation).

BIBLIOGRAPHY

17 “Long v Lloyd” (WikipediaMay 18, 2022) <https://en.wikipedia.org/wiki/Long_v_Lloyd> accessed January 1,

2023
18 Ltd AA, “Leaf v International Galleries - 1950” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/leaf-v-international-galleries.php> accessed January 1, 2023
19 Ltd AA, “Clarke v Dickson - Summary” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/clarke-v-dickson.php> accessed January 1, 2023
20 Chen W, “Car & Universal Finance Ltd v Caldwell [1965] 1 QB 525 - Case Summary” (lawprof.coNovember
14, 2020) <https://lawprof.co/contract/misrepresentation-cases/car-universal-finance-ltd-v-caldwell-1965-1-
qb-525/> accessed January 1, 2023
 Ltd AA, “Keates v the Earl of Cadogan - 1851” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/keates-v-cadogan.php> accessed January 1, 2023

dimmock v hallett 1866 (Court of Appeal in Chancery)

Chen W, “Bisset v Wilkinson [1927] AC 177 - Case Summary” (lawprof.coApril 19, 2022)
<https://lawprof.co/contract/misrepresentation-cases/bisset-v-wilkinson-1927-ac-177/> accessed
January 1, 2023

Chen W, “Bisset v Wilkinson [1927] AC 177 - Case Summary” (lawprof.coApril 19, 2022)
<https://lawprof.co/contract/misrepresentation-cases/bisset-v-wilkinson-1927-ac-177/> accessed
January 1, 2023

Wales v Wadham [1977] 1 WLR 199

“Edgington v. Fitzmaurice” (Casebriefs Edgington v Fitzmaurice Comments)

<https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/misrepresentation/edgington-
v-fitzmaurice/> accessed January 1, 2023

Ltd AA, “Barclays Bank v O'Brien” (Law TeacherJuly 27, 2022)

<https://www.lawteacher.net/cases/barclays-bank-v-obrien.php> accessed January 1, 2023

Ltd AA, “McInerny v Lloyds Bank Ltd - 1974” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/mcinerny-v-lloyds-bank.php> accessed January 1, 2023

“Misrepresentation Flashcards | Quizlet” <https://quizlet.com/5449534/misrepresentation-flash-

cards/> accessed January 1, 2023

Ltd AA, “Pankhania v Hackney LBC” (Law TeacherJuly 27, 2022)

<https://www.lawteacher.net/cases/pankhania-v-hackney-lbc.php> accessed January 1, 2023

“Smith v Land and House Property Corp..” (Case Brief Wiki)

<https://casebrief.fandom.com/wiki/Smith_v_Land_and_House_Property_Corp.> accessed January
1, 2023

Ltd AA, “Esso Petroleum v Mardon - 1976” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/esso-petroleum-v-mardon.php> accessed January 1, 2023

Walters v Morgan (1861) 45 E.R. 1056

Ltd AA, “Redgrave v Hurd - 1881” (Law TeacherJuly 27, 2022)

<https://www.lawteacher.net/cases/redgrave-v-hurd.php> accessed January 1, 2023

Participation E, “Misrepresentation Act 1967” (Legislation.gov.ukFebruary 1, 1978)

<https://www.legislation.gov.uk/ukpga/1967/7/section/2> accessed January 1, 2023

Ltd AA, “Howard Marine v Ogden - 1978 QB 574” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/howard-marine-v-ogden.php> accessed January 1, 2023

“Long v Lloyd” (WikipediaMay 18, 2022) <https://en.wikipedia.org/wiki/Long_v_Lloyd> accessed

January 1, 2023

Ltd AA, “Leaf v International Galleries - 1950” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/leaf-v-international-galleries.php> accessed January 1, 2023
 Ltd AA, “Clarke v Dickson - Summary” (Law TeacherJuly 27, 2022)
<https://www.lawteacher.net/cases/clarke-v-dickson.php> accessed January 1, 2023

Chen W, “Car & Universal Finance Ltd v Caldwell [1965] 1 QB 525 - Case Summary”
(lawprof.coNovember 14, 2020) <https://lawprof.co/contract/misrepresentation-cases/car-
universal-finance-ltd-v-caldwell-1965-1-qb-525/> accessed January 1, 2023