By charging "41 times" the original purchase price, it could even be argued that his opinion was not even "honestly" held. The statement could therefore be categorised as "a statement of an existing fact" which is the first requirement for an actionable misrepresentation. As defined by Bowen L. A misrepresentation as to the state of a man's mind is, therefore, a misstatement of fact. Similarly, in Edgington v Fitzmaurice, it was held that the statement made by the company directors that the money being lent to them by the public would be used for the improvement of building was an actionable misrepresentation.
The money was in fact used to discharge existing liabilities owed by the company. If the statement in this case was of an existing fact, the disclaimer is still under an obligation to correct the statement after the truth is known to him With v O'Flanagan .
Mr Drake believes that Mr Agnew was aware that the painting was not genuine as a "leading expert on Van Dyck" had informed Mr Agnew that the painting was "clearly a copy" after the sale had been concluded. If this evidence were true, Mr Agnew would be liable for misrepresentation for failing to correct his statement after the truth was known to him.
The second requirement of an actionable misrepresentation is that the statement must have induced the contract, in other words, the representee must have relied upon the representor's statement before entering the contract. As held in Redgrave v Hurd  , if a material representation has been made to the representee than he is said to have relied on the statement by the representor, inducing the contract.
The reliance on the representation need not be reasonable, as held in Museprime Properties v Adhill Properties  and it is sufficient for the reliance to be partial Edgington v Fitzmaurice . It could be argued that Mr Drake should have made the relevant enquiries about the authenticity of the painting before entering the contract if there was an opportunity for him to do so, especially with regard to such a large sum of money being involved.
Objectively this may be the case, but we cannot say that it was the "fault" of Mr Drake that induced the contract, which would subsequently reduce any damages made payable to him .
If Mr Drake had carried out investigation on the truth of the matter before the conclusion of the contract, but nevertheless went ahead with it, then there would have been no actionable misrepresentation, as the representation did not induce the contract Atwood v Small . There are not enough facts in the newspaper report to make this claim, although it may be argued in favour of Mr Agnew.
We have now established that the contract between Mr Agnew and Mr Drake may make Mr Agnew liable for actionable misrepresentation. From the given facts, it seems to show that the statement was one of an existing fact and induced the other party to enter the contract.
An actionable misrepresentation would render the contract voidable, and the innocent party can either choose to affirm the contract, or rescind. Rescission is an equitable remedy that would be available if the misrepresentation is fraudulent, negligent or innocent. To rescind a contract the contracting parties will only be returned to their original position and be compensated expenses incurred which were consequential to the contract. The remedy would be to return everything that has been lost under the contract to the innocent party.
The right to claim for damagesin addition, will only be allowed if the misrepresentation is either fraudulent or negligent. In order to assess the remedies available to Mr Drake, we will need to establish what category of misrepresentation this case will fall into, assuming there has been a valid misrepresentation involved. Justice Jacob states that "where a person has made a representation of fact and, before the contract is concluded, comes to learn of its falseness, that person comes under a duty to correct the representation and, if he fails to do so, then is taken to be fraudulent".
However, it is unclear whether Mr Agnew actually believed the statement to be untrue after selling the painting to Mr Drake as it suggests from the report that he still believes the painting to be a genuine Van Dyck. The courts may be reluctant to believe this submission as the statement was confirmed by expert opinion to be untrue after the contract was concluded.
Mr Agnew would have been obliged to inform Mr Drake as to this conflicting opinion even after he had sold the painting.
For a valid fraudulent misrepresentation, it must be shown that the representation had been made knowingly, without belief in its truth, or recklessly. This is the same as if the statement would have been made knowingly falsely. The statements made by Gianni with regard to planning permission and the capacity ability of the store were made fraudulently as Gianni will have been deemed to have expertise in these areas and if he did not wholly believe in the truth of what he was saying.
Donna will have claims in the court for the two statements made. There are two classes of innocent misrepresentation which also known as non-fraudulent misrepresentation. The first is misrepresentation made without ft which would ow rescission as a right to remedy and the second is made through negligence and would give the court the right to grant damages and rescission. If Gianni attempted to incorporate the representations he made into the contract, thereby having Donngree to accept them by signing the contract, he does not remove his liability under misrepresentation as making the statement a contractuterm does not stop the statement from being misrepresentation and giving Donna redress in the courts.
Donna could seek redress under both negligent and fraudulent misrepresentation. Donna could also get the courts to declare the contract rescinded. This means the contract is still vd but can be set aside by either party to the contract.
It does not render the contract void as it is. Donna may not want to set the contract aside as she would lose the property and would rather just desire compensation for the losses she suffered rather than be returned to the position she was in before taking on the contract which was without the property.
Donnnvested time, and will have lost money as well as potentiy reputation amongst any existing clients and this can only be compensated in damages. Donna would be seeking compensation under both negligent and fraudulent misrepresentation. The level of damages that are avble to Donna will be reflected in the loss she suffered from the representation that were made which were misrepresentations.
Question B: When discussing the damages a claimant can claim in court, these can take a wide variety of forms. Tangible assets, which includes actuhard cash, are clearly included, being easily replaced by a cash insertion from the defendant under order of the court.
Other injuries can also be covered by damages, such as loss of feelings, reputation, suffering inconvenience and stress and even other menty recognised disorders or discomforts by damages Archer v Brown QB Further damages can include other side-effects which may have been caused by entering into the contract. These include, loss of the contract which was entered into on the basis of the misrepresentation, loss of money paid to any third party involved, loss of profits Barley v Walford 9 QB , appointments or earnings or injury to property, expenses or any detriment which would offer pecuniary compensation can also be Mullett v Mason LR 1 CP The claim under fraudulent and negligent misrepresentation are tortious claims.
A tortious claim, subject to the damage for deceit, can exist based on a duty to care, independent of any contractuor fiduciary duties Le Lievre v Gould 1 QB , CA. In order to establish a duty of care, a causconnection needs to be established between the loss that was suffered by the claimant and a breach of duty of care engaged in by the defendant.
The breach of duty must have directly caused the loss suffered. Often this is again a question for the courts and is often left to their interpretation of previous case law as to whether the loss qufies. Not only are the calculation of actudamages left to the discretion of the court but also the causconnection.
In general, damages are not available, but rescission may be awarded. See also MisrepresentationAct Misrepresentation Act s.
It has the effect of shifting the burden of proof from the claimant to the defendant; that is, if the claimant alleges that the defendant made a negligent misrepresentation, the onus is on the defendant to show that he had good grounds for believing the representation to be true. The Act also makes it possible for the court to award damages in misrepresentation cases, where Rescission would not be available.
Another effect of the Act, or at least of the way the Act has been interpreted by judges, is to allow the claimant to recover not just forseeable losses, but all direct losses. A misrepresentation must be a representation of fact not of law as you are expected to know the law , opinion or intention. Valentino is not expressing opinions; the statements he made will be regarded fact.
Esso Petroleum Co. Ltd v Mardon The second statement is an intention to install the system at similar businesses. The representor, when making statements of intent has a right to change their mind unless these intentions are terms of the contract. Although this action was never carried out, it must be proved Answer had no intention of carrying this out at the time the statement was made. Edgington v Fitzmayrice , directors of a company issued a prospectus inviting debentures saying the money raised would be used for expansion of the company.
Money was advanced but was in fact used to pay off debts. This was held as misrepresentation as stating you intend to do something is, at the time you state it as much a fact as anything else. In order for a misrepresentation to occur it must be proved that the representations induced the contract.
Get the extra support you require now. This means giving advise in a professional capacity or having skills and expertise on which the other party can be expected to rely.
Because the burden of proof would be on Answer there is a much greater chance of success. When applied to the facts of this case, Mr Agnew was the owner of an art gallery; therefore, he should be in a better position to know the truth than Mr Drake. In Leaf v International Galleries  , a Constable painting was sold to the defendant in For example, one of the parties may fraudulently misrepresent a service to be offered. Mr Drake believes that Mr Agnew was aware that the painting was not genuine as a "leading expert on Van Dyck" had informed Mr Agnew that the painting was "clearly a copy" after the sale had been concluded.
Mr Agnews' should have taken more care over the making of his statement as objectively, it would most likely be relied upon by any ordinary consumer. Justice Jacob states that "where a person has made a representation of fact and, before the contract is concluded, comes to learn of its falseness, that person comes under a duty to correct the representation and, if he fails to do so, then is taken to be fraudulent".
No plagiarism, guaranteed! The statement is specific, concerning the subject matter of the contract, and has induced Mr Drake to purchase the painting Carlill v. Rescission is an equitable remedy that would be available if the misrepresentation is fraudulent, negligent or innocent. The measure of damages is tortious under fraudulent misrepresentation so if Mr Agnew was liable for fraudulent misrepresentation, Mr Drake would be compensated for "all the damage directly flowing from the tortious act of fraudulent inducement which was not rendered too remote