CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

• Define misrepresentation and explain why it may help Ben.


• Deal with the claims made by Bill. There may be a mere commendation
  or a statement of opinion – Dimmock v Hallett, Bisset v Wilkinson.
  Consider silence and half-true statements – Fletcher v Krell, Dimmock
  v Hallett. The claim about the new clutch is likely to be a
  misrepresentation (even if you feel that it is not, you need to discuss
  what remedy may be available if it was held to be one, so that you can
  show the examiner that you know about the remedies).


• Consider the possibility of proving that the misrepresentation was
  fraudulent (according to Derry v Peek) – the options would be:
  rescission, or damages in the tort of deceit.


• If this is unlikely, or difficult to prove, then the options are: rescission, or
  damages under the Misrepresentation Act 1967 s.2(1). The burden of
  proof shifts to Bill to show innocence (difficult) – Howard Marine v
  Ogden.


• Discuss the basis of assessment and loss of profits – Royscott v
  Rogerson, East v Maurer. If the court decided not to allow rescission,
  damages may be possible under the Misrepresentation Act 1967 s.2(2).


• The use of the car raises the issue of common law bars to rescission,
  especially affirmation – Long v Lloyd, although a defence would be the
  need to fulfil obligations to clients.


• Conclude as to whether the remedies are satisfactory for Ben.

Question 2

This kind of question involves several issues. Part (a) involves the claims

made by Conn about the computer, and therefore raises the issue of

misrepresentation. Part (b) concerns the discharge of the contract by

frustration following Bill’s accident. Part (c) considers the remedies for

breach of contract.

• Part (a) should be answered in a similar way to question 1, bearing in
  mind that you have about 25 minutes, this being one third of a question.


• Define misrepresentation and apply this to Conn’s statements – he is acting
  on behalf of the seller and misleads the buyer, Bill – see Esso v Mardon.


• Likely to be fraudulent misrepresentation (Derry v Peek) as you are told
  that Conn knew that his statements were not true. Therefore rescission
  is possible, unless barred (see Chapter 11), as Conn knew that his
  statements were not true. Damages for fraudulent misrepresentation are
  available in the tort of deceit.


• If it is difficult to prove fraud, or the statements are not thought to be
  fraudulent, rescission is available (again, unless barred) under the
  Misrepresentation Act 1967 s2(1). The burden of proof shifts to the
  misrepresentor to prove innocence, and this is a heavy burden to discharge
  (Howard Marine v Ogden). See Chapter 11 for the measure of damages.

Answers guide 311

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