Chapter 4
Misrepresentation, mistake, duress
and illegality
This chapter deals with matters which can invalidate a contract. The first of these matters is
misrepresentation. A misrepresentation is made when a statement which is not a part of the
contract, but which induced the making of the contract, proves to be false. Remedies are
available to the party who was induced by the misrepresentation to make the contract.
However, as we shall see, these remedies can easily be lost.
Sometimes the parties make a contract while they are mistaken as to some fundamental
fact. Depending upon the nature of the mistake made, it is possible for a contract to be
rendered void on account of a mistake having been made.
A contract is made under duress when a party is pushed into it in such a way that he or
she did not really consent to it. When a contract is made under duress, or where it is made
on account of the undue influence of someone else, the contract can be avoided by the
victimised party.
This chapter concludes by examining the grounds on which a contract may be void
or illegal.representations The difference between terms and
Chapter 3 explained that a contract is made up of terms and that the express terms are
inserted into the contract by the parties. The offeror proposes a set of terms in the offer.
If the offeree accepts the offer, the proposed terms become the terms of the contract.
If any term is breached, the injured party will always have a remedy for breach of
contract.
Frequently, however, a person is persuaded to make a contract by a statement which is
not a part of the contract. Such a statement cannot be a term. If this statement turns out to
be untrue, the injured party might or might not have a remedy for misrepresentation. To
sue for misrepresentation, however, is not the same as to sue for breach of contract. Not
only are the remedies different, but the whole basis of the action is different. It is therefore
necessary to distinguish terms and representations.Written contracts
In written contracts the express terms will be contained in the written document.
Statements which are not contained in the written document cannot be terms but can be
representations.