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Editing Contracts/Misrepresentation
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In 1991, ''[[Royscot Trust Ltd v Rogerson]]''<ref>''Royscott Trust v Rogerson'' [1991] 3 All ER 294 CA</ref> changed all that. The court gave a [[statutory interpretation|literal interpretation]] of s.2 (which, to paraphrase, provides that where a person has been misled by a negligent misrepresentation then, if the misrepresentor would be liable to damages had the representation been made fraudulently, the defendant "shall be so liable"). The phrase '''shall be so liable''' was read literally to mean "liable as in fraudulent misrepresentation". So, under the Misrepresentation Act 1967, damages for negligent misrepresentation are calculated as if the defendant had been fraudulent, even if he has been merely careless.<ref>''Royscott Trust v Rogerson'' is arguably ''[[Mechanisms of the English common law|per incuriam]]'' as the court failed to pay attention to the definition of fraudulent misrep in ''[[Derry v Peek]]''. Had the court done so, it would have held that the misrep in this case was fraudulent rather than negligent.</ref> Although this was almost certainly not the intention of Parliament, no changes to the law have been made to address this discrepancy: the [[Consumer Rights Act 2015]] left the 1967 Act intact. This is known as the fiction of fraud and also extends to tortious liability.<ref>Tortious liability has a wider scope than usual contractual liability, as it allows the claimant to claim for loss even if it is not reasonably foreseeable,{{citation needed|date=February 2018}} which is not possible with a claim for breach of contract due to the decision in Hadley v Baxendale. Inclusion of the representation into the contract as a [[Contractual term|term]] will leave the remedy for breach in damages as a common law right. The difference is that damages for misrepresentation usually reflect the claimant's [[reliance interest]], whereas damages for breach of contract protect the claimant's [[expectation interest]], although the rules on mitigation will apply in the latter case. In certain cases though, the courts have awarded damages for loss of profit, basing it on loss of opportunity: see ''[[East v Maurer]]'' [1991] 2 All ER 733.</ref> | In 1991, ''[[Royscot Trust Ltd v Rogerson]]''<ref>''Royscott Trust v Rogerson'' [1991] 3 All ER 294 CA</ref> changed all that. The court gave a [[statutory interpretation|literal interpretation]] of s.2 (which, to paraphrase, provides that where a person has been misled by a negligent misrepresentation then, if the misrepresentor would be liable to damages had the representation been made fraudulently, the defendant "shall be so liable"). The phrase '''shall be so liable''' was read literally to mean "liable as in fraudulent misrepresentation". So, under the Misrepresentation Act 1967, damages for negligent misrepresentation are calculated as if the defendant had been fraudulent, even if he has been merely careless.<ref>''Royscott Trust v Rogerson'' is arguably ''[[Mechanisms of the English common law|per incuriam]]'' as the court failed to pay attention to the definition of fraudulent misrep in ''[[Derry v Peek]]''. Had the court done so, it would have held that the misrep in this case was fraudulent rather than negligent.</ref> Although this was almost certainly not the intention of Parliament, no changes to the law have been made to address this discrepancy: the [[Consumer Rights Act 2015]] left the 1967 Act intact. This is known as the fiction of fraud and also extends to tortious liability.<ref>Tortious liability has a wider scope than usual contractual liability, as it allows the claimant to claim for loss even if it is not reasonably foreseeable,{{citation needed|date=February 2018}} which is not possible with a claim for breach of contract due to the decision in Hadley v Baxendale. Inclusion of the representation into the contract as a [[Contractual term|term]] will leave the remedy for breach in damages as a common law right. The difference is that damages for misrepresentation usually reflect the claimant's [[reliance interest]], whereas damages for breach of contract protect the claimant's [[expectation interest]], although the rules on mitigation will apply in the latter case. In certain cases though, the courts have awarded damages for loss of profit, basing it on loss of opportunity: see ''[[East v Maurer]]'' [1991] 2 All ER 733.</ref> | ||
S.2 does not specify how "damages in lieu" should be determined, and interpretation of the statute is up to the courts | S.2 does not specify how "damages in lieu" should be determined, and interpretation of the statute is up to the courts, | ||
==Vitiating factors== | ==Vitiating factors== |