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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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Drafting terms for the sale of goods—business to business—checklist This Checklist is for drafting terms and conditions for the sale of goods. It sets out the key considerations when drafting business-to-business (B2B) standard form terms and conditions or a contract for the sale of goods. It considers the legal, regulatory and practical issues around the sale and supply of goods and is drafted with a seller/supplier bias. For general guidance on contracts for the sale of goods, see Practice Notes: Contracts for the sale and supply of goods—business to business and Implied terms in contracts for goods and services. For general guidance on key terms in commercial contracts more broadly, see Practice Note: Key terms and conditions in commercial contracts. General considerations Speak to departmental representatives within the business to establish any concerns they have and any customer feedback that should be addressed in the terms. Understand how the goods will be provided and any back-end processes, eg for delivery or returns, which need to be reflected in the terms....
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...
Misrepresentation—rescission as a remedy This Practice Note sets out when and how an innocent party can rescind a contract for misrepresentation, why they would wish to do so and when rescission is not permissible. For guidance on when a party may recover damages for a misrepresentation or seek to limit/exclude liability for misrepresentation, see Practice Notes: • Misrepresentation—damages as a remedy • Misrepresentations—excluding and limiting liability for them Restitutionary payment consequent upon rescission The consequentials judgment of Baker J in Pisante v Logothetis considers in some detail the award of financial payment consequent upon the rescission of a transaction which the claimant had been induced to enter into by the defendants’ misrepresentation. In so doing the judge observed that: ‘28. [...] The complete undoing of the rescinded contract (restoration to the status quo ante) is a just response to the claimant’s proof that it was misled into giving its consent to that contract. It is not unfair or inequitable that, in certain circumstances, that can leave the claimant...
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Ireland—Confidentiality agreement—property transaction In a proposed sale of land, particularly land with development potential, there may be some financial and/or commercially sensitive information that the vendor wants to keep confidential and there may be tenants from whom they wish to keep their proposals secret. It can be very difficult for the vendor to prove that the potential purchaser has disclosed (or even used) the relevant information, and so the best protection for the vendor is to disclose as little as possible consistent with attracting interested parties to make a suitable offer. This agreement contains provisions commonly found in confidentiality agreements (although is not exhaustive), and in most cases should not require much amendment by either party. This is important because it is quite common for confidentiality undertakings to be signed without legal advice, due to both parties being anxious to avoid undue delay or expense at this early stage. Please note that this document does not expressly deal with data protection, and to the extent that significant or particularly sensitive...
Personal data sharing agreement—independent controllers—one-way This Agreement is made on [date] Parties 1 [insert name of disclosing party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Disclosing Party), and 2 [insert name of receiving party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Receiving Party), (each of the Disclosing Party and the Receiving Party being a party and together the Disclosing Party and the Receiving Party are the parties). Background (A) The parties have identified a requirement to share the Shared Data for the Permitted Purpose. (B) The parties have decided to create a framework for the [systematic OR ad-hoc OR one-off] sharing of the Shared Data, which is likely to require sharing of the Shared Personal Data. (C) The Disclosing Party considers that it may share the Shared Personal Data with the Receiving Party on the legal...
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Which limitation period applies if two causes of action are being brought together which have different limitations? Assuming that each cause of action has a distinct statutory limitation period, it would be possible for one cause of action to be time-barred, and therefore fail (or be struck out), whilst other causes of action might survive and ultimately be successful upon disposal of the claim. For example, in Brent London Borough Council v Davies, a complex series of different causes of action were brought against a number of defendants. The Court considered different limitation periods both with respect to the different causes of action and, within the different causes of action, to different elements of loss. However, the position is complicated where the causes of action include equitable claims which do not have an express statutory limitation period. For example, the tort of deceit has a six-year limitation period under section 2 of the Limitation Act 1980 (LA 1980). A claim in equity to rescind a contract for fraudulent misrepresentation,...
Is a claim to a right to access and use land, which is disputed, a latent incumbrance on/defect in the seller’s title and subject to the seller’s implied contractual duty of disclosure to a prospective buyer? Notwithstanding the principle of caveat emptor, a seller is under a common law duty to disclose latent defects in title. A latent defect is a defect which would not be apparent to a buyer on inspection and can include, for example, a right of way or other easement or, in the case of leasehold property, the existence of grounds for forfeiture. A patent defect, by contrast, is one which is visible to the buyer or one whose existence can be deduced from something visible to the buyer. A seller is obliged to disclose latent defects in title regardless of whether or not the buyer asks. A seller should also be aware of the overlap between their duty of disclosure and the covenants for title (or title guarantee) which may be implied into the transfer...
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Restructuring & Insolvency analysis: This was an application for an injunction to restrain presentation of a winding up petition. The respondent was a company which asserted that it was entitled, pursuant to a term sheet prepared during loan negotiations, to a £350,000 break fee and certain other sums. The applicant’s main argument was that it had a cross-claim in misrepresentation which meant that (1) the term sheet, to the extent that it had contractual force, had been rescinded and (2) there was in any event a damages claim large enough to extinguish the alleged debt. It was held that there was sufficient evidence of misrepresentation to meet the test. The applicant was entitled to an injunction. Written by Nora Wannagat, barrister at Tanfield Chambers.
Arbitration analysis: In dismissing an application to stay court proceedings pending a reference to arbitration, the Malaysian Court of Appeal (“Court of Appealâ€) clarified the approach that ought to be taken by the courts when considering a stay application under Section 10 of the Malaysian Arbitration Act. When there is plainly an arbitration agreement but an assertion is made that the arbitration agreement was invalidated because it is null and void, inoperative or incapable of being performed, the courts should apply the ‘just and convenient’ approach, ie—in a situation where both the court and the arbitral tribunal have jurisdiction and power to investigate and conclude on the validity of an arbitration agreement, the appropriate forum to do so must be the, on balance, more just and convenient forum, having regard to the facts and circumstances in issue. This contrasts with the situation where the existence of the arbitration agreement itself is in issue. In such circumstances, the courts should adopt the ‘prima facie approach’ which is to consider whether there...
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