Misrepresentation - Representation Is Not A Term

Representation Is Not A Term

Contract law
Part of the common law series
Contract formation
  • Offer and acceptance
  • Posting rule
  • Mirror image rule
  • Invitation to treat
  • Firm offer
  • Consideration
Defenses against formation
  • Lack of capacity
  • Duress
  • Undue influence
  • Illusory promise
  • Statute of frauds
  • Non est factum
Contract interpretation
  • Parol evidence rule
  • Contract of adhesion
  • Integration clause
  • Contra proferentem
  • Title-transfer theory of contract
Excuses for non-performance
  • Mistake
  • Misrepresentation
  • Frustration of purpose
  • Impossibility
  • Impracticability
  • Illegality
  • Unclean hands
  • Unconscionability
  • Accord and satisfaction
Rights of third parties
  • Privity of contract
  • Assignment
  • Delegation
  • Novation
  • Third-party beneficiary
Breach of contract
  • Anticipatory repudiation
  • Cover
  • Exclusion clause
  • Efficient breach
  • Deviation
  • Fundamental breach
Remedies
  • Specific performance
  • Liquidated damages
  • Penal damages
  • Rescission
Quasi-contractual obligations
  • Promissory estoppel
  • Quantum meruit
Implied In Fact Contracts
  • Implied In Fact
Related areas of law
  • Conflict of laws
  • Commercial law
Other common law areas
  • Tort law
  • Property law
  • Wills, trusts and estates
  • Criminal law
  • Evidence

As enacted by the Misrepresentation Act, the statement in question may constitute a representation even if later incorporated into the contract as a term (i.e. a warranty, condition or innominate term).

An alternative approach, applied in parallel but in exclusivity to, is to find a collateral contract by interpreting the representation as a promise accompanied by some sort of consideration (see Heilbut, Symons & Co. v Buckleton A.C. 30 (H.L.)). The collateral contract will have the effect of adding the representation as a term to the contract.

If the representation is found to be a term then the normal remedies for breach of contract apply.

Read more about this topic:  Misrepresentation

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