Statements of law
These have traditionally not been actionable, as they are not regarded as
statements of fact. Also, people are generally taken to be as equals before
the law and to have equal access to it (although this is obviously an ideal,
rather than reality). However, some points should be noted.
- A lawyer (or similar person) mis-stating the law will not be absolved
from liability for breach of professional duty of care on this basis. This
is quite logical, given his professional expertise. - A wilful misrepresentation of law may be actionable as a statement of
opinion not actually held.
Difficulties may arise in deciding whether a statement is one of law or fact,
and it may be a mixture of the two. For example, a statement that the Sale
of Goods Act 1979 s.13 requires goods sold to correspond with their
description is clearly one of law. If a shopper complains to a friend that the
packet of biscuits she bought as custard creams were found inside to be
ginger snaps, she is obviously making a statement of fact. However, if her
friend then advises her that the item should be exchanged because the
biscuits inside did not correspond to the description on the packet, this is a
mixture of fact and law.
More recently, there has been some move away from the traditional
position regarding wrong statements of law, as seen in the following case.
Silence and misrepresentation
The general rule is that silence does not amount to misrepresentation. There
is no liability for failing to disclose relevant facts to the other party, even if
170 Contract law
future intentions were held to be misrepresentations. In such
circumstances, where there is clear proof of what a person intends to
do, Bowen LJ said that ‘the state of a man’s mind is as much a fact as
the state of his digestion’.Pankhania v Hackney London Borough Council(2002)
This case concerned a £4 million purchase of commercial property and
the wrong statement concerned whether the property was legally subject
to a licence or a tenancy. The decision heralds a change in stance in this
area of law. There is now liability for a mistake over the law (see
Kleinwort Benson v Lincoln City Councilin Chapter 12), and in the case
of Pankhania v Hackneythe High Court judge held that a similar shift in
attitude should apply to misrepresentation. He said that to maintain the
traditional position would be ‘no more than a quixotic anachronism’.