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Note that, being founded on the [[tort]]ious action on [[negligent misstatement]], one of the ingredients of an actionable [[misrepresentation]] is that the representer somehow fell short of an implied duty of care in making the statement: the simple fact that the representation was false is not enough if the representer cannot reasonably have ''known'' it was false. This feels a more significant distinction than it is: [[tort]] governs situations where the parties, being randoms, have not had the opportunity to document their duties to one another, so the law steps in to help. Where they ''have'', through the medium of [[contract]], the law says, “you don’t need my clever appeals to the judgment of prudent people on public transport to work out how you must treat each other, because you have worked it out for yourselves.” | Note that, being founded on the [[tort]]ious action on [[negligent misstatement]], one of the ingredients of an actionable [[misrepresentation]] is that the representer somehow fell short of an implied duty of care in making the statement: the simple fact that the representation was false is not enough if the representer cannot reasonably have ''known'' it was false. This feels a more significant distinction than it is: [[tort]] governs situations where the parties, being randoms, have not had the opportunity to document their duties to one another, so the law steps in to help. Where they ''have'', through the medium of [[contract]], the law says, “you don’t need my clever appeals to the judgment of prudent people on public transport to work out how you must treat each other, because you have worked it out for yourselves.” | ||
Where the parties ''have'' written down their respective duties, but they still appeal to a [[tortious]] standard — which is what they are doing by writing “[[representations]]” into a [[contract]] — as well as admitting to confusion between the laws of [[tort]] and [[contract]]. In any case, where the parties have written down their duties, the fellow on the [[Clapham omnibus]] would surely say that their abstract tortious duties would map exactly on to what they have agreed. Why would he impose a duty different to the ones the parties have voluntarily assumed? | Where the parties ''have'' written down their respective duties, but they still appeal to a [[tortious]] standard — which is what they are doing by writing “[[representations]]” into a [[contract]] — as well as admitting to confusion between the laws of [[tort]] and [[contract]]. In any case, where the parties have written down their duties, the fellow on the [[Clapham omnibus]] would surely say that their abstract tortious duties would map exactly on to what they have agreed. Why would he impose a duty different to the ones the parties have voluntarily assumed? To be “[[negligent]]” under a [[contract]] is to [[breach]] that [[contract]], no more and no less.<ref>This is why the idea of “[[gross negligence]]” is all the more abstruse.</ref><br> | ||
Revision as of 10:14, 11 November 2020
A representation is a statement of present or historical fact made by one person to another outside the bounds of a contract that induces that other person to enter a contract. By its nature, a representation is therefore not a term of the contract itself — it cannot be; it was made before the contract came about; it is an egg to the contract’s chicken — although that won’t stop attorneys gleefully adding representations into the contract afterward, co-branding them as warranties, for good measure. For, if your counsel is diligent enough, you may have your cake and eat it, too. Non-contractual representations may provide relief: a false representation may entitle the party induced into the contract in reliance on it to claim under the Misrepresentation Act 1967 and rescind the contract altogether, or claim damages for negligent misstatement in tort.
Note that, being founded on the tortious action on negligent misstatement, one of the ingredients of an actionable misrepresentation is that the representer somehow fell short of an implied duty of care in making the statement: the simple fact that the representation was false is not enough if the representer cannot reasonably have known it was false. This feels a more significant distinction than it is: tort governs situations where the parties, being randoms, have not had the opportunity to document their duties to one another, so the law steps in to help. Where they have, through the medium of contract, the law says, “you don’t need my clever appeals to the judgment of prudent people on public transport to work out how you must treat each other, because you have worked it out for yourselves.”
Where the parties have written down their respective duties, but they still appeal to a tortious standard — which is what they are doing by writing “representations” into a contract — as well as admitting to confusion between the laws of tort and contract. In any case, where the parties have written down their duties, the fellow on the Clapham omnibus would surely say that their abstract tortious duties would map exactly on to what they have agreed. Why would he impose a duty different to the ones the parties have voluntarily assumed? To be “negligent” under a contract is to breach that contract, no more and no less.[1]
- ↑ This is why the idea of “gross negligence” is all the more abstruse.