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Misrepresentation And Negligence Notes

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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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