In order to know whether or not Dr Paul had misrepresented the contract between Ms Gloria, firstly, what must first be considered is that, a misrepresentation is a false statement made by representee that allows the other party to enter into a contract but it does not itself forms a part of the contract. Misrepresentation may happen when a statement given by the representee to someone is not true either before or during the formation of a contract.In this case, it can be considered as a fraudulent misrepresentation; it is when a representation is known to be untrue by which it is made without knowing the truth about it further causes other party to suffer damages. Fraudulent misrepresentation allows the party to cancel and get damages for any loss they experience.
A misrepresentation may result to make the contract voidable. A case that further explain the term of fraudulent misrepresentation is Derry v Peek, where a claimant had been represented by a representee of a company to buy shares and he bought the shares. Later, the claimant then decided to claim for damages as a result of fraud. However, the court said that it was not fraudulent and yet, fraud must be known for it to be untrue.In contrast to Bisset v Wilkinson, where a statement of opinion is not part of misrepresentation and what Dr Paul have said was not an opinion.
A claimant bought a land for the purpose of sheep farm. He asked the defendant on how many sheep that the farm can hold. The defendant said that approximately two thousand sheep. The court held that the defendant was not an expert on sheep farm, and his reply was in a form of an opinion, thus, the contract was not misrepresented.Also a case of Smith v Land & House Property Corporation where the defendant, a tenant, described a hotel that was the most desirable and the plaintiff bought the hotel.
Later, the description was found the vice versa from what the defendant had described. The court said that the agreement between them, however, can be canceled. This is due to an opinion may bring to misrepresentation.It is normal to have someone like Dr Paul who may not always correct at presenting on most every detail of their sale (advertisement) and even though Dr Paul have not misrepresented the contract, the court will order to undo the contract between them in order to bring back the parties to their original states and this process under contract law is called rescission.This case is similar to Kleinwort Benson v Lincoln City Council where Kleinwort involved in swap agreements (a form of gambling) with local authorities in order to boost their investments.
Yet, both parties made an inaccuracy on the contract law. Then the court held that the law had been changed for some contract before the progress of the act. The case is under the mistake of law to be retrieved. (496 words) d) In order to know whether or not Ms Gloria upon the exclusion clause on the back of the receipt that Dr Paul has issued to her is binding upon her, firstly, the exclusion clause, also known as exemption clause means that one party attempts to deny their liability towards the other party who claimed for payment for damages or remedies. The purpose of exclusion clause is to withdraw liability (protect somebody from having a responsibility.
) from the breach of contract. From answer (c), Dr Paul is supposed to not having any responsibility for misrepresentations that he made. Secondly, to know whether or not the clause is in a signed document. For signed documents, the court will usually say it is binding (automatically forms a contract) and even though a claimant have read the document or not nonetheless, he understands it or not. For instance, a case of L’Estrange v Graucob, where a claimant claimed for defensiveness of a slot machine after he signed a contract whereby to decline all warranties. The court held that the claimant could not claim for the defensiveness.
This is due to the terms was accepted to by the claimant as he signed the document. Also, this case represents the concept of freedom of contract, by which parties to a contract can decide if they want to be bound by the agreement. The claimant is assumed for that he did not read the document that he signed. The claimant is bound except there has been a misrepresentation. However, as there was no misrepresentation, the claimant was bound by the exclusion clause.
For an unsigned document, where the clause that exists in a ticket or a notice such as in Dr Paul case, the court will expect for a reasonable and sufficient notice should be given. If both parties were dealing with each other before then the terms may be included through the dealing even though the term is not emphasized to the other party in this case. As in Spurling Ltd v Bradshaw where the court said that the notice should be written or printed in red ink on the document before it could held to be binding. The clause must be included in a contractual document. Another case that is similar to the case is Chapelton v Barry Urban District Council where the plaintiff, Chapelton bought a ticket to sit on a deck chair provided by the defendant, Barry Urban District Council and got injured when he sat on it.
He then sued the council for negligence. The court held that he could not sue the council as there was already written on the ticket saying that the council will no be responsible for any damage that occurs as a result of any accident.For every case that involves this kind of case, the courts will frequently held to give attention to the presence of the exclusion clause with clear words on the front of the document given to the plaintiff