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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 | 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 [[Man on the Clapham Omnibus|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> | ||