Misrepresentation

AuthorJohn D. McCamus
Pages335-377
335
CHAP TER 10
MISR EPRESENTATION
A. I NTRODUC TION
When one party has induced another par ty to enter into an agreement
by making a material statement of fact that is false, a variety of rem-
edies may be avail able to the misrepresentee, both at common law and
in equity. The principal remedy is that of resci ssion, which, if available,
has the effect of unwindi ng or setting a side the agreement. The remedy
of rescission is avail able only if the parties to the ag reement can be re-
stored to their initial position in the sense that t here must be possible
a giving back and a ta king back of benef‌its received by both part ies.
In this sens e, the remedy is restitutiona ry in nature. The setti ng aside
of the agreement will be accompanied by re stitutionary relief for both
parties. If the misrepresentation was made fraudulently, in the sense
that either the misrepresentor knew t hat the statement was false or
made the statement “recklessly and without care, whether it was true
or false, and not with the belief t hat it was true,”1 the resulting agree-
ment could be rescinded at common law. In equity, however, a decree of
rescission could be granted even in a case where the misrepresentation
was innocently fals e in the sense that the misrepresentor did not make
the statement with fraudulent intent. The availability of re scission,
however, is curtailed by the existence of a number of traditional limita-
1Redg rave v. Hurd (1881), 20 Ch. D. 1 at 13 (C.A.), Jessel M.R.
THE LAW OF CONTR ACTS336
tions or defences and, where such limitations apply, the misrepresentee
may wish to pursue other forms of relief.
As well as or as an altern ative to rescissionar y relief, the misrepre-
sentee may in certai n circumstance s pursue claims for compensation in
tort. Where an agreement has been induced by a fraudulent misstate-
ment, the tort of deceit has been committed and the misrepresentee will
be entitled to recover compensatory dam ages. Although tortious liability
for fraudulent inducement of agreements has a lengthy history,2 it was
not until the latter part of the twentieth cent ury that the tort of negli-
gence was extended to cover economic loss sustained a s a result of negli-
gent misst atements.3 This form of liability was, in due course, extended
to embrace claims for injuries su stained as a result of entering into un-
attractive agreements induced by negligent misstatement.4 The mea sure
of relief in tort extends to compensation for all losses occasioned by the
tortious misconduct and is thus more comprehensive than the restitu-
tionary relief th at accompanies rescission of the agreement.5
Before considering the various remedial alternatives available in
the context of misrepresentation, we turn to an account of the ele-
ments of operative misrepresent ation and a consideration of the extent
to which non-disclosure of a fact may constitute misrepresentation in
the requisite sense. We will also consider the suggestion made by some
that a duty to disclose facts might be imposed where a sta ndard of
good-faith conduct so requires.
B. THE ELEMEN TS OF MISR EPR ESENT ATION
In order to provide a basis for rescissionar y relief, the misrepresenta-
tion must be a statement of present or past fact that is false. For these
purposes, st atements of fact are disting uished from mere “sales tal k,”
from statements of opin ion or belief, from stateme nts of intention or
promises and, under traditional doctrine at least, from statements of
law. Further, the fact that is misstated must be material to the deci-
sion of the misrepresentee to enter the agreement and the mis statement
must serve as an inducement to the mak ing of that decision.
2 See, for example, Der ry v. Peek (1889), 14 A.C. 337 (H.L.).
3Hedley Byrne & Co. v. Heller & Partners Lt d., [1964] A.C. 465, [1963] 2 All E .R.
575 (H.L.) [Hedley Byrne].
4Esso Petroleum Co. v. Mardon, [1976] Q.B. 801 (C.A.) [Esso v. Mardon]; Sodd Cor por-
ation v. Tessis (1977), 17 O.R. (2d) 158, 79 D.L.R. (3d) 632 (C.A.) [Sodd v. Tessis].
5 For discussion of t he difference between the re stitutionary and tort me asures of
relief, see Chapte r 1, Section C.
Misrepres entation 337
1) S a les Ta lk
Vague and imprecise expressions or statements puff‌ing or aggrandiz-
ing the virtues of, for example, a seller’s product are not relied upon
by a reasonable purchaser. Such statements are mere sales talk, “puff-
ery” or “dealer’s talk” and not statements of fact that, if false, provide a
foundation for legal remedies. Thus, statements by a seller of land that
the land is “improved6 or is an “uncommonly rich” water meadow7 or
“fertile a nd improvable at moderate cost”8 or an exaggerated estimate
of the value of a crop produced by the land to be sold9 have all been
held to be mere sales talk that affords no ground for relief. In some
cases, however, vague commendatory language from a seller who has
privileged informat ion concerni ng the subject matter of the sale may be
taken to include an implicit statement of fact. Thus, the statement by a
seller of a used car that it was a “good little bus” was characterized as
an implicit statement of fact that the vehicle met a minimum st andard
of roadworthiness.10 Sim ilarly, the seller of a house who had acted as
his own contractor in building the home and who was aware of serious
defects in the construction was held to have made a misrepresentation
when describing the house a s “well built.”11
2) O pin i on
The distinction between statements of fact and statements of opinion
is similarly intended to exclude, as a basi s for relief, statements upon
which the misrepresentee would not reasonably rely. Thus, where an
opinion is offered by someone who has no particul ar experti se in the
matter in question, the statement would be considered to be one of
opinion rather than one of fact. A reasonable person would not rely on
such an opinion. Thus, an estimate by a vendor of land who estimated
the sheep-bearing c apacity of the land was held to have been a mere
opinion on the matter.12 Similarly, estimates of the value of assets by
6Andronyk v. Williams (1985), 21 D.L.R. (4th) 557 (Man. C.A.), leave to appeal to
S.C.C. refused (1986), 42 Man. R. (2d) 242n.
7Scott v. Hanson (1829), 1 Russ. & M. 128, 39 E.R. 49.
8Dimmock v. Hallett (1866), L.R. 2 Ch. App. 21.
9Rasch v. Horne, [1930] 3 D.L.R. 647 (Man. C.A.).
10 Andrews v. Hopkinson, [1957] 1 Q.B. 229.
11 Mariani v. Lemstra, [2003] O.J. No. 750.
12 Bisset v. Wilkinson, [1927] A.C. 177 (P.C.). And see, for example, Trethewey v.
Girard (1983), 149 D.L.R. (3d) 359 (B.C.S.C.) (private sel ler of boat represented
to be sound).

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