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Access all documents on Fraudulent misrepresentation
A knowingly false assertion intended to mislead another and make them agree to a contract because of that misrepresentation.
Fraudulent misrepresentation is a misrepresentation made where the representor knows the statement is false. The required elements for fraudulent misrepresentation are: there must have been a statement, the statement must have been unambiguous, the statement must have been false, the statement must be one ‘of fact’, the statement must have been addressed to the party misled, and the statement must have induced the claimant to enter into the contract. The representation need not have been the only inducement to enter into the contract.
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Key provisions in a consultancy agreement—checklist This Checklist sets out the key provisions to consider in a consultancy agreement. This Checklist highlights issues which are relevant to the customer, issues which are relevant to the consultant and issues which are relevant to both parties for inclusion in a consultancy agreement. This Checklist will assist both the consultant and the customer when reviewing and negotiating a consultancy agreement. See also: Taking instructions for a consultancy agreement—checklist. For Precedent consultancy agreements, see: • Consultancy agreement—company and individual—pro-client • Consultancy agreement—company and company—pro-client • Consultancy agreement—individual and company—pro-consultant • Consultancy agreement—company and company—pro-consultancy • Consultancy agreement—company and individual—pro-client (short form) • Side letter to consultancy agreement—company and company—pro-client For further related guidance, see: Consultancy services—overview and Practice Notes: • Managed service companies and the anti-avoidance legislation • Deciding appropriate employment status • Personal service companies—the key benefits and key tax considerations • Securing intellectual property rights from employees and contractors • IR35—the large and public client off-payroll regime—practical considerations for the end client...
Drafting and negotiating an entire agreement clause—checklist This Checklist sets out key issues to consider, and provides practical guidance, when drafting and negotiating entire agreement clauses in a business-to-business (B2B) contract. It considers the implications of common law and statutory controls, including the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). The purpose of an entire agreement clause is to give the parties certainty that the entirety of the agreement between them is set out in writing and to ensure that any pre-contractual representations, statements, arrangements or discussions will not form part of the agreement they are entering into. Statements are often made by one party to another as part of the pre-contract negotiations (for example as part of a sales process). Disputes can arise around whether, or which, statements are intended to form part of the contract or potentially give rise to other remedies. Depending on the facts, a pre-contractual statement might take legal effect (and give rise to remedies). For more information, see Practice Note: Pre-contractual representations and statements....
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A claim for misrepresentation requires that the statement made must have been false. This is the ‘falsity’ requirement.Having established the falsity of a statement, however, the next question is whether that false statement was made fraudulently or innocently. If the false statement was made innocently, then there is yet a further question to consider, namely whether there was any negligence involved in the innocent making of the false statement.This Practice Note considers the requirement for falsity in a misrepresentation claim and discusses the distinctions and reasons for pleading fraudulent misrepresentation rather than negligent or innocent misrepresentation, with reference to the Misrepresentation Act 1967 (MA 1967). It also sets out a number of pointers for assessing a misrepresentation claim.For guidance generally on misrepresentation claims, including what they are (and are not) and the key constituent elements for bringing a claim for actionable misrepresentation, see Practice Note: Misrepresentation—what it is and similar claims.For related Practice Notes on remedies of damages and rescission in misrepresentation claims, see Practice Notes: •Misrepresentation—damages as a remedy•Misrepresentation—rescission...
Exclusion clauses in property contracts—misrepresentation This Practice Note explains why exclusion clauses are used in property contracts and when they may be of no effect, including at common law in the context of fraudulent misrepresentation. It also covers the Unfair Contract Terms Act 1977 (UCTA 1977) under which clauses purporting to exclude liability for misrepresentation are subject to a reasonableness test, and considers case law in respect of the Standard Conditions. Exclusion clauses aim to protect a party to a contract by excluding or limiting liability against claims for breach of contract or in tort. In the context of property contracts, exclusion clauses are typically ‘non-reliance’ clauses, designed to exclude the seller’s liability for misrepresentation. Typical wording is as follows: ‘…the buyer enters into this agreement solely as a result of their own inspection and on the basis of the terms of this agreement and not in reliance upon any representation or warranty written or oral or implied made by or on behalf of the seller (save for any representation...
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Consultancy agreement—company and individual—pro-client (short form) [ON HEADED NOTEPAPER OF CLIENT COMPANY] [Insert consultant’s name] [Insert consultant’s address] [Insert date] Dear [insert consultant’s name] [ Consultancy agreement OR Insert name of project ] Further to our recent discussions, I am pleased to confirm the terms of our agreement regarding the provision of your consultancy services to [insert name of client company] (Company). 1 Term 1.1 [Subject to the terms set out in this letter, your engagement [will commence OR commenced] on [insert date] and will continue unless or until either party gives to the other not less than [insert number] [weeks’ OR months’] prior notice in writing. OR 1.2 Your engagement will be for a fixed period of [insert number] months from [insert date], subject to the terms of this letter and subject to the right of either the Company or you to give to the other not less than [number] [weeks’ OR months’] notice in writing during such fixed period terminating the...
Distribution agreement—non-exclusive—short form This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Manufacturer); and 2 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Distributor); each of the Manufacturer and the Distributor being a party and together they are the parties. Background (A) The Manufacturer manufactures [and supplies] the Products. (B) The Distributor has agreed to distribute the Products on a non-exclusive basis in the Territory in accordance with the provisions of this Agreement. The parties agree: 1 Definitions 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Affiliate • means any entity that directly or indirectly controls, is controlled by, or is in under common control with, another entity where “control†means the beneficial ownership of...
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Can a common law residential tenancy agreement be rendered void for fraudulent misrepresentation? Case Scenario: (where the landlord (A) granted a company let to Company B which expressly permitted the occupation of a named individual (C) who was the sole director of Company B. Keys were released when A was given a transfer document in the name of B which purported to evidence that a sum of moneys representing the deposit and initial rent was being paid. A reference was also provided from the accountant of C, painting C to be a successful businessman / credible. The money never arrived. Subsequent searches show that C is a convicted fraudster and Company B is a shell company)? If so, in order to rescind the agreement and obtain possession or forfeit and obtain possession, should the tenant be treated as a trespasser? It is assumed there is no dispute that there has been fraudulent misrepresentation on the basis of the facts given, however, it should be noted that to prove...
Can you contract out of your right to rescind a contract you were induced to enter by a fraudulent misrepresentation and limit your remedy to damages, or is that unenforceable in the same way a clause excluding liability for fraud would be? This Q&A assumes that the query relates to a general commercial contract between businesses (B2B). A contract term which excludes or limits liability is subject to both statutory and common law controls. See Practice Note: Exclusion and limitation of liability which considers exclusion and limitation of liability in B2B contracts. It provides guidance on the common law and statutory controls affecting exclusion and limitation of liability clauses. See, in particular, the section headed Fraud. Limiting/excluding remedies for misrepresentation—statute Under statute (Misrepresentation Act 1967 (MA 1967, s 3)) a contract term which excludes or restricts: ‘(b) any remedy available to another party to the contract by reason of such a misrepresentation’ [emphasis added] is of no effect except to the extent that it satisfies the reasonableness test under...
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This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including the Hague Judgments Convention coming into force for the UK and the Court of Appeal decision in AmTrust Specialty Ltd v Endurance Worldwide Insurance Ltd (disclosure scheme in the Business and Property Courts); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.
Arbitration analysis: In this decision, the Paris Court of Appeal (the Court) dismissed the Central Bank of Iraq (CBI)’s request to annul the arbitral award on multiple grounds. First, the court found that CBI’s claim that the recognition and enforcement of the award in France would violate French international public policy was inadmissible. It held that the allegations (such as fraud and misappropriation of public funds) pertained solely to private contractual disputes rather than actual matters of international public policy. Consequently, CBI was deemed to have waived its right to raise these irregularities by failing to do so in a timely manner during the arbitral proceedings. Second, the court dismissed CBI’s claim that the sole arbitrator would have violated due process and the principle of equality of arms. The court found that CBI had been given ample opportunity to participate in the proceedings but chose not to do so. It also found that the sole arbitrator had reasonably addressed CBI’s late request to reopen the proceedings, ensuring CBI had a...
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