So, usually, a statement of opinion will not give rise to a claim in
misrepresentation. However, what seems to be a statement of opinion may
by implication involve a statement of fact; for example, a person may
represent that he holds an opinion when it is found as a fact that he did not
believe what he said. Obviously this will depend on reasonable evidence
being available.
A statement of opinion may be regarded as a statement of fact in a
situation where one party possesses greater skill or knowledge than the
other, and represents by implication that he knows facts which support or
justify the opinion.
A more recent illustration of this point came in the interesting case of Esso
v Mardon (1976).
168 Contract law
misrepresentation because the buyer knew that the seller had never
farmed sheep in New Zealand, and was only voicing an opinion.Smith v Land & House Property (1884)
A seller described the occupier of the property as ‘a most desirable
tenant’. It was subsequently found that he had only paid rent erratically
and under pressure. This was held to be a misrepresentation because
the seller was the only person who could have known this information,
so he had an extra duty to take care over his statements as his opinion
would be regarded as authoritative.Esso v Mardon (1976)
The defendant was thinking of opening a petrol station, and sought the
advice of a specialist from Esso as to what would be the likely
throughput of petrol (and therefore the likely profit). On the basis of
these figures the defendant decided to go ahead with the purchase of
the business. Between the initial negotiations and the eventual purchase
the local authority insisted on the resiting of the petrol pumps, to the
back of the site, with access off a side road. This meant that the trade
was not as expected, and the throughput and takings were about half of
those expected. The defendant decided that he could no longer carry
on, and when Esso sued for repossession of the property, he made a
counterclaim for misrepresentation. It was held that there was a
misrepresentation by Esso for several reasons:- the Esso expert possessed greater skill, and therefore responsibility,
than the defendant, and was in possession of more material facts