those facts might have influenced the other party, and even if it is obvious
that the other has a wrong impression that could be remedied by disclosure.
In this situation, the initial presumption, at least, is that the principle of
caveat emptor applies. Translated literally this means ‘let the buyer
beware’, or, in other words, do not rely on the statements of a seller, but use
your own judgement. The following case is the usual authority for this.
Misrepresentation, then, does not arise normally out of mere silence. This
was stated by Lord Campbell in Walters v Morgan (1861), when he said
that ‘simple reticence does not amount to legal fraud, however it may be
viewed by moralists’. However, he went on to point out that there were
circumstances where this general rule does not apply.
- Conduct may amount to misrepresentation. Lord Campbell said that this
may be in the form of ‘a nod, a wink, a shake of the head or a smile’, but
is not difficult to imagine other situations where a prospective buyer, for
example, may be misled by the conduct of the seller. Equally a
photograph or image may mislead, as in the following recent case.
Misrepresentation 171Fletcher v Krell (1873)
A governess was appointed to a post, and when it was later found that
she had previously been married, a claim of misrepresentation was
made against her for not disclosing this (it was not desirable at that
time to have a governess who was married, let alone separated).
However, it was held that merely keeping quiet about something about
which no questions had been asked was not a misrepresentation, and
the claim failed.Is there a difference between remaining silent over a matter of personal life
in an interview and remaining silent over an item which is being sold?St Marylebone Property v Payne (1994)
A misleading photograph of land which was for for sale by auction gave
sale. This was held to be a misrepresentation, overriding an exemption
clause concerning errors, and resulting in the bidders rescinding the
contract and obtaining the return of their deposit.Spice Girls v Aprilia World Service (2000)
The Spice Girls group all took part in filming an advertisement for
Aprilia’s motor scooters. This action was held to be a misrepresentation
of the fact that they knew that they would not be remaining together as
a complete group, even though nothing was actually said about this.