I am still really confused on the whole remedies part of Misrepresentation questions.
Briefly, this is what my revision question is about:
A restaurant owner advertises his restaurant for sale and is approached by Stella who is interested in buying it. In one conversation with her, he makes three statements: first, about how long he has owned the restaurant; second, of his plans to retire to Spain as he is sick of the restaurant business; third, the tenant upstairs is professional and very quiet.
All of these statements are lies though the tenant one is a half-truth. So, I have established that each of the three statements are a misrepresentation. Now I have to work out what type they are and what remedies can be used.
Here's the problem: do I regard the three statements as ONE single statement or do I regard them as three statements?
If I classed them as one statement I would encounter this problem: the first two statements are made fraudulently whilst the thirds (tenant) is made negligently. So how would I be able to work out a remedy for that?? Does the third, negligent statement mitigate/lessen the fraudulent ones thus giving a 'less harsh' remedy?
But if I classed them as three statements, how am i supposed to work through them individually in the question/exam - it'll take forever!! And I still wouldn't know how to go about three separate remedies.
Thanks for any info
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- Thread Starter
- 16-07-2009 15:03
- 16-07-2009 18:37
Treat them seperately.
Making a extra negligent misstatement isn't going to lessen the fraudulent ones. If I sell you my car saying that it is a Mercedes when it is in fact a Skoda; I'm hardly going to make that less actionable by throwing in another misrepresentation as well, for example by saying "its got 60k on the clock" when its actually got 70k.
It shouldn't take too long to go through. The main issue is usually whether rescission is available; and sometimes a brief comment on how the damages might be quantified is in order. Don't get bogged down in whether a misrep is fraudulent or not. Given that you can rescind for a serious negligent misrepresentation, then it usually doesn't matter. Actual fraud is extremely difficult to prove - in the real world, you'd almost always just go for negligent misrep even if the misrep looks like it might have been fraudulent. You should not engage in long discussions as to the nature of a misrep.
- Thread Starter
- 17-07-2009 01:38
thank you VERY much for helping me with that, it was the only thing holding me up in finishing my revision question. I'll add rep, very grateful!