company law

Brian vs Nick: The Misrepresentation in the Law of Contract
Misrepresentation of facts, that is statement of untrue or misleading information so as to induce parties into a contract, is acknowledged as one of the vitiating factors in contractual relationships. There are three possible forms of representation under English law of contract, namely: fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation. The locus classicus for fraudulent misrepresentation is to be found in the case of Derry v Peek[ (1889) 14 App. Cas. 337.], where the house of Lords asserted that a representation is fraudulent where : (i) a representation is made knowingly that it is untrue , or (ii) the representation is made reckless without caring as to whether it is true or false. Doyle v Olby[ [1969] 2 QB 158It] clarified further that fraudulent misrepresentation is characterised by a wilful intention to deceive. It was latter to be held in Hedley Byrne v Heller[ [1964] A.C. 465] that the second alternative to definition of fraudulent misrepresentation presented in Derry v Peek,[ (1889) 14 App. Cas. 337.] is a negligent misrepresentation, rather than fraudulent one. Thus, intention to deceive is not an element of negligent representation. Innocents misrepresentation arises where a party misrepresents statements, but with reasonable ground to be believe in its truth.[ Hedley Byrne v Heller [1964] A.C. 465]
It is contended in wide range of cases that damages arising from misrepresentation are to be calculated as per the equivalent tortuous liabilities, because representations are not themselves terms of contract, and thus have no basis to attract contractual damages.[ Doyle v Olby [1969] 2 QB 158; Hedley Byrne v...

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...nt case, the staff of SportaLtd’s did not bring to the attention of Nick the existence of the exemption clause at the time he was making payment, neither did Nick take note of the clause. For these reasons, relying on, Richardson Spence & Co v Rowntree,[ Richardson Spence & Co v Rowntree [1894] A.C. 217; 63 L.J.Q.B. 283] Nick would not be bound by them. The possibility of relying on the clauses is further diminished by the fact that they were in small fonts and pt upside down. Under these circumstances, Nick could not have reasonably learnt of their existence and he cannot be bound by them as pointed out in Richardson Spence & Co v Rowntree.[ Richardson Spence & Co v Rowntree [1894] A.C. 217; 63 L.J.Q.B. 283] The exclusion clause in the changing room is definitely not binding because Nick encountered it after the contract had been formed at the entry point.