FACTORS INFLUENCING

CONSENSUS-SIMPLIFIED
VERSION
VOIDABLE CONTRACTS

 EVEN IF ALL ELEMENTS OF THE CONTRACT ARE PRESENT, A CONTRACT

MAY BE SET ASIDE IF CONSENT WAS INDUCED BY MISREPRESENTATION,
DURESS AND UNDUE INFLUENCE.
 IF CONSENT IS DEFECTIVE, THE CONTRACT IS SAID TO BE VOIDABLE AS
OPPOSED TO VOID. THE PARTY WHO HAS BEEN INDUCED MAY CLAIM
RESTITUTION
 RESTITUTION IS RESTORATION TO THEIR ORIGINAL POSITION BEFORE THE
CONTRACT WAS ENTERED INTO.
 THE CONTRACT IS DEEMED TO VALID FOR ALL INTENTS AND PURPOSES
UNLESS AND UNTILL IT HAS BEEN SET ASIDE.
VOIDABLE CONTRACTS CONTD.

 WHERE A CONTRACT IS VOIDABLE, THE INNOCENT PARTY HAS AN OPTION OR ELECTION

TOP ONE OF TWO THINGS.
 THEY MAY CHOOSE TO EITHER STAND BY THE CONTRACT OR
 CLAIM RESTITUTION
 THIS CHOICE MUST BE MADE WITHIN A REASONABLE TIME AFTER KNOWLEDGE OF THE
PROBLEM OR FLAW. ONCE A CHOICE IS MADE, THE OTHER LATERNATIVE IS LOST FOR
GOOD.
 IF THE PARTY IS INTERESTED IN RESTITUTION THEN HE SHOULD HIMSELF MAKE
RESTITUTION.
 WHERE THERE IS INABILITY TO MAKE RSTITUTION WHICH IS NOT DUE TO ANY FAULT OF
THE PARTY SEEKING IT THEN HE IS EXCUSED. EG WHERE THE SUBJECT MATTER HAS
PERISHED, THE GENERAL RULE OF RESTITUTION IS NOT APPLICABLE
MISREPRESENTATION

 A FALSE STATEMENT OF FACT MADE BY ONE OF THE PARTIES AT THE TIME

OF THE CONTRACT WITH THE INTENTION OF INDUCING THE OTHER PARTY
TO CONTRACT AND ACTUALLY DOES SO.
 THE STATEMENT IS NOT A TERM OF THE CONTRCT BUT AN INDUCEMENT
AND NO RESPONSIBILITY IS TAKEN FOR THE CORRECTNESS OF THE
STATEMENT AS OPPOSED TO WARRANTIES WHICH ARE A TERMS OF THE
CONTRACT.
 FALSE STATEMENTS MAY BE EXPRESSED OR IMPLIED FROM THE CONDUCT
OF THE REPRESENTOR
MISREP CONTD

 FOR A CONTRACT TO BE SET ASIDE ON ACCOUNT OF MISREPRESENTATION

FOUR THINGS HAVE TO BE SHOWN
1. THE REPRESENTATION WAS MADE WITH THE INTENTION OF INDUCING
THE OTHER PARTY TO CONTRACT
2. THE CONTRACT WAS CONCLUDED ON THE FAITH OF THE
REPRESENTATION
3. THE REPRESENTATION WAS MATERIAL
4. THE REPRESENTATION WAS FALSE IN FACT
INTENTION TO INDUCE

 THE REPRESENTATION HAS TO BE MADE WITH THE INTENTION TO INDUCE

 IT SHOULD ALSO BE LOOKED AT OBJECTIVELY
 SHOULD THERE BE A DUTY TO SPEAK??
 DOES SILENCE OR NON DISCLOSURE AMOUNT TO A REPRESENTATION?
 WHAT IS THE POSITION OF LATENT DEFECTS? INSURANCE CONTRACTS?
 A MERE LIE WILL NOT PASS THE TEST UNLESS THE INTENTION WAS THAT IT SHOULD
BE ACTED UPON.
 IF THE STATEMENT DOES NOT INDUCE THE CONTRACT THEN THE CONTRACT
CANNOT BE SET ASIDE
 TEST-WOULD YOU HAVE ENTERED INTO THE CONTRACT IF THE FALSE
STATEMENT HAD NOT BEEN MADE?
 THERE HAS TO BE ACTUAL INDUCEMENT. A MATERIAL
MISREPRESENTATION IS ONE WHICH IS OF SUCH A NATURE AS WOULD
LIKELY TO INDUCE A PERSON TO CONTRACT
 IT HAS TO BE SHOWN THAT THE STATEMENT IS FALSE
 DOES MERE PUFFING (DEPICTING THE ITEM IN GLOWING TERMS)
AMOUNT TO A MISREPRESENTATION?
 WHAT ABOUT A STATEMENT OF OPINION?
 DOES A VOETSTOOTS CLAUSE RELIEVE RESPONSIBILITY FOR
MISREPRESENTATION?