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Misrepresentation And Negligence Notes

Law Notes > Contract Notes

This is an extract of our Misrepresentation And Negligence document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contract Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

MISREPRESENTATION

AND

NEGLIGENCE

*

*

*

At

common

law,

parties

are

bound

to

agreements

if

the

elements

of


contractual

formation

are

established.


'Historically,

courts

have

exercised

jurisdiction

to

set

aside

contracts

and


other

dealings

on

a

variety

of

equitable

grounds.

They

include

fraud,


misrepresentation,

breach

of

fiduciary

duty,

undue

influence

and


unconscionable

conduct


They

all

constitute

species

of

unconscionable

conduct

on

the

part

of

a


party

who

stands

to

receive

a

benefit

under

a

transaction

which,

in

the


eye

of

equity,

cannot

be

enforced

because

to

do

so

would

be

inconsistent


with

equity

and

good

conscience.'


o Commercial

Bank

of

Australia

Ltd

v

Amadio

(1983)

151

CLR

447,

461 per

Mason

J


What

is

misrepresentation?

* Liability

is

imposed

at

common

law

for

false

statements

made

in

pre--
contractual

negotiations.

* The

contract

may

be

set

aside

if

one

party

(the

representor)

induced

the


other

party

(the

representee)

to

enter

into

the

contract

by

making

a

false


statement

of

fact.

* Misrepresentation

has

become

less

significant

over

time,

because

of


related

statutory

causes

of

action


o (especially,

Australian

Consumer

Law

s

18

(formerly,

the

Trade


Practices

Act

1974

(Cth),

s

52).


Types

of

misrepresentation:

1. Innocent

2. Fraudulent

3. Negligent

* The

only

contractual

remedy

for

misrepresentation

is

recession

* Damages

are

available

in

tort

for

culpable

misrepresentation


o Negligent

or

fraudulent


Elements

of

misrepresentation:

1. A

false

statement

of

fact

2. Made

by

the

representor

to

the

representee

3. Which

was

made

with

the

intention

of

inducing

the

representee

to

enter


into

a

contract

with

the

representor

and

which

did

induce

the


representee

to

enter

into

the

contract

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