voidable, rather than void, and on some occasions ending the contract may be
deemed by the court to be unfair, and therefore barred. The following are
circumstances when this arises.
1 Statutory bar
Under the Misrepresentation Act 1967 s.2(2) the court has a right to award
damages in lieu of rescission (see above). This arose in the recent case of
Zanzibar v British Aerospace (2000).
2 Lapse of time
If a person discovers a misrepresentation but waits too long before making
a claim, the right to do so may be barred. This arose in Leaf v International
Galleries (1950) where a painting thought to be a Constable was found to
be a copy five years after the sale, but it was too late to rescind. It should
be noted that lapse of time is slightly different according to whether the
misrepresentation is fraudulent or non-fraudulent.
For fraudulent misrepresentation the time in which a claim can be made
begins at the point of discovery of the misrepresentation, so lapse of time
is rarely an issue.
For non-fraudulent misrepresentation the time is measured from the
point of contract, as in Leaf v International Galleries, so it is very
important that the misrepresentation is discovered quickly.
3 Affirmation
Affirmation is indication that the misrepresentee is willing to continue with
the contract (and possibly claim damages). This arose in Long v Lloyd
(1958) where a lorry-driver bought a lorry about which the seller had made
claims. When these were found to be untrue and the lorry developed
problems, the buyer telephoned the seller and agreed to share the cost of
repair. The buyer took the lorry on another journey and it again broke
down. He then tried to claim rescission, but it was held that his willingness
to share costs and use the lorry indicated affirmation and he had barred the
right to rescind.
4 Restitution impossible
When claiming rescission items must be handed back in their original
condition. The courts recognise that absolute restitution is not always
possible, since some things must be used for the misrepresentation to be
discovered. However, it should be as near to complete as possible. In Vigers
v Pike (1842) restitution of a mine was not possible because considerable
extraction had taken place.
180 Contract law