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Difference between revisions of "Consumer Protection from Deceptive and Unconscionable Acts (11:IV)"
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Consumer Protection from Deceptive and Unconscionable Acts (11:IV) (view source)
Revision as of 20:42, 15 June 2016
, 20:42, 15 June 2016→1. The Common Law
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=== 1. The Common Law === | === 1. The Common Law === | ||
Despite the breadth of the BPCPA, it does not provide remedies for all contractual situations.Before commercial legislation (SGA) or consumer protection acts (BPCPA), the common law provided remedies for | Despite the breadth of the ''BPCPA'', it does not provide remedies for all contractual situations. Before commercial legislation (''SGA'') or consumer protection acts (''BPCPA''), the common law provided remedies for misrepresentation. | ||
==== a) Fraudulent Misrepresentation ==== | |||
Fraudulent misrepresentation occurs when the vendor knowingly makes a false statement of fact that is material to the contract and the statement serves as an inducement to enter the contract. The buyer may be awarded the common law remedy of rescission and can also sue for damages in the tort of deceit. Breaches of contract damages, such as the expectation of profit, are not available, because a party cannot claim for the contract to be rescinded and, at the same time claim that the contract exists for the purposes of claiming damages. | |||
==== b) Innocent Misrepresentation ==== | |||
An innocent misrepresentation arises when a representation of fact is false, material to the contract, and the buyer is induced to enter the contract by the representation. Unlike fraudulent misrepresentation, though the representation is not known to be false. The remedy, which is an equitable remedy, is rescission, which attempts to put the parties back in the position they were in before the contract. | |||
A misrepresentation might also be considered to be a term of the contract or as a term in a collateral contract. In this situation, the client can sue for damages if the misrepresentation ends up being untrue. | |||
For the remedy of rescission, there could be several possible bars: | |||
*i) third party rights have arisen; | |||
*ii) an undue delay occurred since the misrepresentation; | |||
*iii) the contract has been executed (not an absolute bar); | |||
*iv) the contract has been affirmed by the aggrieved party; or | |||
*v) it is impossible for the courts to undo the contract. | |||
==== c) Negligent Misrepresentation ==== | |||
Negligent misrepresentation operates in the same way as innocent misrepresentation, but it arises when the representation is made negligently as opposed to in a completely innocent manner. As with innocent misrepresentation, the remedy is rescission. ''Hedley Bryne v Heller'' (1964), AC 465 is one example of a case involving negligent misrepresentation. | |||