| 释义 |
misrepresentation
n. An untrue statement of fact, made by one party to the other in the course of negotiating a contract, that induces the other party to enter into the contract. The person making the misrepresentation is called the representor, and the person to whom it is made is the representee. A breach of representation is only actionable if it is considered misrepresentation, and this excludes “mere trade puffs”. The statement must be material and, unless the representee relies on the statement so that it becomes an inducement (though not necessarily the only inducement) to enter into the contract, it is not a misrepresentation. Silence does not constitute misrepresentation, as there is no legal duty to disclose facts (with exception for uberrimae fidei contracts); however, a half-truth is considered misrepresentation (Dimmock v Hallett (1866) LR2 Ch App 21), and if there is a change in circumstances before the contract is concluded, this should be reported (With v O’Flanagan [1936] Ch 575). A false statement of law, opinion, or intention does not constitute a misrepresentation—unless, in the case of law, the application of the law is misrepresented (Pankhania v London Borough of Hackney [2002] EWHC 2441 (Ch), [2004] All ER (D) 205 (Jan)); in the case of opinion, the representator did not have reasonable grounds for holding that opinion (Smith v Land and House Property Co (1884) 28 ChD 7) or had specific expertise on the subject (Esso Petroleum v Mardon [1976] QB 801); or, in the case of statement of intention, it can be shown that there never was such an intention (Edgington v Fitzmaurice (1885) 24 ChD 459). A statement of fact known by the representee to be untrue does not amount to misrepresentation (Redgrave v Hurt (1881) 20 ChD 1). The remedies for misrepresentation vary according to the degree of culpability of the representor. If he is guilty of fraudulent misrepresentation (i.e. if he did not honestly believe in the truth of his statement, which is not the same as saying that he knew it to be false) the representee may, subject to certain limitations, set the contract aside by rescission and may also sue for damages. If he is guilty of negligent misrepresentation (i.e. if he believed in his statement but had no reasonable grounds for doing so) the representee was formerly entitled only to rescission but may now (under the Misrepresentation Act 1967 or by an action in tort for negligence) also obtain damages. If the representor has committed merely an innocent misrepresentation (one he reasonably believed to be true) the representee is restricted to rescission, subject to the discretion of the court under the 1967 Act to award him damages in lieu. A representee entitled to rescind a contract for misrepresentation may decide instead to affirm it. See also misdescription; nondisclosure. |