A concept of English law, a misrepresentation is an untrue or misleading statement of fact made during negotiations by one party to another, the statement inducing that other party into the contract. The misled party may rescind the contract, sometimes may be awarded damages as well; the law of misrepresentation is an amalgam of tort. The common law was amended by the Misrepresentation Act 1967; the general principle of misrepresentation has been adopted by the USA and various Commonwealth countries. A "representation" is a pre-contractual statement made during negotiations. If a representation has been incorporated into the contract as a term the normal remedies for breach of contract apply. Factors that determine whether or not a representation has become a term include: The relative expertise of the parties; the reliance that one party has shown on the statement. The reassurances given by the speaker; the customary norms of the trade in question. The representation forms the basis of a collateral contract.
Otherwise, an action may lie in misrepresentation, in the torts of negligence and deceit also. Although a suit for breach of contract is straightforward, there are advantages in bringing a parallel suit in misrepresentation, because whereas repudiation is available only for breach of condition only, rescission is prima facie available for all misreps, subject to the provisions of s.2 of the Misrepresentation Act 1967, subject to the inherent limitations of an equitable remedy. There is no general duty of disclosure in English contract law, one is not obliged to say anything. Ordinary contracts do not require "good faith" as such, mere compliance with the law is sufficient; however in particular relationships silence may form the basis of an actionable misrepresentation: Agents have a fiduciary relationship with their principal. They must not make secret profits. Employers and employees have a bona fide duty to each other. A contract uberrimae fidei is a contract of'utmost good faith', include contracts of insurance, business partnerships, family agreements.
When applying for insurance, the proposer must disclose all material facts for the insurer properly to assess the risk. The duty of disclosure in insurance has been amended by the Insurance Act 2015. To amount to a misrepresentation, the statement must be untrue or misleading. A statement, "technically true" but which gives a misleading impression is deemed an "untrue statement". If a misstatement is made and the representor finds that it is false, it becomes fraudulent unless the representer updates the other party. If the statement is true at the time, but becomes untrue due to a change in circumstances, the representor must update the original statement. Actionable misrepresentations must be misstatements of fact or law: misstatements of opinion or intention are not deemed statements of fact. For example, false statements made by a seller regarding the quality or nature of the property that the seller has may constitute misrepresentation. Statements of opinionStatements of opinion are insufficient to amount to a misrepresentation as it would be unreasonable to treat personal opinions as "facts", as in Bisset v Wilkinson Exceptions can arise where opinions may be treated as "facts": where an opinion is expressed yet this opinion is not held by the representor, where it is implied that the representor has facts on which to base the opinion, where one party should have known facts on which such an opinion would be based.
Statements of intentionStatements of intention do not constitute misrepresentations should they fail to come to fruition, since the time the statements were made they can not be deemed either true or false. However, an action can be brought if the intention never existed, as in Edgington v Fitzmaurice. Statements of lawFor many years, statements of law were deemed incapable of amounting to misrepresentations because the law is "equally accessible by both parties" and is "...as much the business of the plaintiff as of to know what the law.". This view has changed, it is now accepted that statements of law may be treated as akin to statements of fact; as stated by Lord Denning "...the distinction between law and fact is illusory". Statement to the misledAn action in misrepresentation can only be brought by the misled party, or "represent"; this means that only those who were an intended recipient of the representation may sue, as in Peek v GurneyIt is not necessary for the representation to have been be received directly.
However, it IS essential. The misled party must show that he relied on the misstatement and was induced into the contract by it. In Attwood v Small The seller, made false claims about the capabilities of his mines and steelworks; the buyer, said he would verify the claims before he bought, he employed agents who declared that Small's claims were true. The House of Lords held that Attwood could not rescind the contract, as he did not rely on Small but instead relied on his agents. Edgington v Fitzmaurice confirmed further that a misrepresentation need not be the sole cause of entering a contract, for a remedy to be available, so long as it
Negligence is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness with extenuating circumstances; the core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property. Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm; such loss may include harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, actual cause, proximate cause, damages; some things must be established by anyone. These are. Most jurisdictions say that there are four elements to a negligence action: duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care, breach: the defendant breaches that duty through an act or culpable omission, damages: as a result of that act or omission, the plaintiff suffers an injury, causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.
Some jurisdictions narrow the definition down to three elements: duty and proximately caused harm. Some jurisdictions recognize five elements, breach, actual cause, proximate cause, damages. However, at their heart, the various definitions of what constitutes negligent conduct are similar; the legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a recognised responsibility is the concept of an obligation or duty. In the tort of negligence the term used is duty of care The case of Donoghue v Stevenson established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, have been adopted throughout the Commonwealth. May Donoghue and her friend were in a café in Paisley; the friend bought Mrs Donoghue. She drank some of the beer and poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle.
Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson.. The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict; the case proceeded to the House of Lords, where Lord Atkin interpreted the biblical ordinance to'love thy neighbour' as a legal requirement to'not harm thy neighbour.' He went on to define neighbour as "persons who are so and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." In England the more recent case of Caparo Industries Plc v Dickman introduced a'threefold test' for a duty of care. Harm must be reasonably foreseeable there must be a relationship of proximity between the plaintiff and defendant and it must be'fair and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care. In Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills.
This was a landmark case in the development of negligence law in Australia. Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame v State of New South Wales. Determining a duty for mental harm has now been subsumed into the Civil Liability Act 2002 in New South Wales; the application of Part 3 of the Civil Liability Act 2002 was demonstrated in Wicks v SRA. Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled; the test is both objective. The defendant who knowingly exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty; the defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would have realized breaches that duty. However, whether the test is objective or subjective may depend upon the particular case involved. There is a reduced threshold for the standard of care owed by children.
In the Australian case of McHale v Watson, McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. Certain jurisdictions provide for breaches where professionals, such as doctors, fail to warn of risks assoc
Law of Australia
The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, the common law of Australia arising from the decisions of judges; the Australian Constitution is the legal foundation of the Commonwealth of Australia and sets out a federal system of government, dividing power between the federal Government and the States and territories, each of which are separate jurisdictions and have their own system of courts and parliaments. The constitutional framework of Australia is a combination of elements of the Westminster and United States systems of government; the federal legislature has the power to pass laws with respect to a number of express areas, which apply to the whole of Australia and override any State laws to the extent of any inconsistency. However, beyond those express areas the States’ legislatures have plenary power to enact laws on any subject.
At both the federal and State levels, the substantive law of Australia is derived from the common law system of English law. The High Court of Australia is the highest court in Australia, hears appeals from federal and State courts on matters of both federal and State law. Unlike the United States, there is only one common law of Australia rather than common laws for each of the several jurisdictions of the states and territories; the legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins. When the British arrived in Australia, they considered the continent to be terra nullius, or land belonging to no-one, on the basis that the Aboriginal peoples inhabiting the continent were too primitive to have lawful possession of the land. Under the English conception of international law at the time, when uninhabited lands were settled by English subjects the laws of England applied to the settled lands; as such, Aboriginal laws and customs, including native title to land, were not recognised.
The reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of enactment should be applied in the courts of New South Wales and Van Diemen's Land so far as those laws were applicable. Since Queensland and Victoria were part of New South Wales, the same date applies in those States for the reception of English law. South Australia adopted a different date for reception; the earliest civil and criminal courts established from the beginnings of the colony of New South Wales were rudimentary and military in character. Although legality was not always observed, the courts limited the powers of the Governor, the law of the colony was at times more egalitarian than in Britain. By 1824, a court system based in essence on the English model had been established through Acts of the British Parliament; the New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to deal with all criminal and civil matters "as and amply as Her Majesty's Court of King's Bench, Common Pleas and Exchequer at Westminster".
Inferior courts were established, including courts of General or Quarter Sessions, Courts of Requests. Representative government emerged in the 1840s and 1850s, a considerable measure of autonomy was given to local legislatures in the second half of the nineteenth century. Colonial Parliaments introduced certain reforms such as secret ballots and female suffrage, which were not to occur in Britain until many years later. Acts of the United Kingdom Parliament extending to the colonies could override contrary colonial legislation and would apply by "paramount force". New doctrines of English common law continued to be treated as representing the common law of Australia. For example, the doctrine of the famous case of Donoghue v Stevenson from which the modern negligence law derived, was treated as being latent within the common law at the time of reception. Following a number of constitutional conventions during the 1890s to develop a federal nation from the several colonies, the Commonwealth of Australia Constitution Act was passed and came into force on 1 January 1901.
Thus, although a British statute, this became Australia's Constitution. Following federation, Britain's role in the government of Australia became nominal in the 20th century. However, there was little momentum for Australia to obtain legislative independence; the Australian States did not participate in the conferences leading up to the Statute of Westminster 1931, which provided that no British Act should be deemed to extend to the dominions without the consent of the dominion. The Australian Government did not invoke the provisions of the statute until 1942; the High Court followed the decisions of the Privy Council during the first half of the twentieth century. Complete legislative independence was established by the Australia Act 1986, passed by the United Kingdom Parliament, it removed the possibility of legislation being enacted at the consent and request of a dominion, applied to the States as well as the Commonwealth. It provided for the complete abolition of appeals to the Privy Council from any Australian court.
The Australia Act represented an important symbolic break with Britain, emphasised by Queen Elizabeth II's visit to Australia to sign the legislation in her distinct capacity as the Queen of Australia. Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century. In addition, a large body of English law received
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The Commonwealth Law Reports are published by a division of Thomson Reuters. James Merralls AM QC was the editor of the Reports from 1969 until his death in 2016; each reported judgment includes a headnote written by an expert reporter which, as an authorised report, has been approved by the High Court. The headnotes include a summary of counsel's legal arguments; the Reports include tables of cases reported, reversed, applied or judicially commented on and cited. The Reports are available in PDF format from Westlaw AU. For lawyers, the Commonwealth Law Reports are the preferred source for decisions of the High Court of Australia. An example of proper citation is: Coleman v Power 220 CLR 1This citation indicates that the decision of the Court in the case entitled Coleman v Power, decided in 2004, can be found beginning at page 1 of volume 220 of the Commonwealth Law Reports. An alternative citation, medium neutral, is: Coleman v Power HCA 39This citation refers to the case entitled Coleman v Power, the 39th decision published by the High Court of Australia in 2004.
Both forms of citation may be used so that users can access the case from different sources: Coleman v Power HCA 39.
A contract is a legally-binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is enforceable because it meets the requirements and approval of the law. An agreement involves the exchange of goods, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation. In the Anglo-American common law, formation of a contract requires an offer, consideration, a mutual intent to be bound; each party must have capacity to enter the contract. Although most oral contracts are binding, some types of contracts may require formalities such as being in writing or by deed. In the civil law tradition, contract law is a branch of the law of obligations. At common law, the elements of a contract are offer, intention to create legal relations and legality of both form and content. Not all agreements are contractual, as the parties must be deemed to have an intention to be bound.
A so-called gentlemen's agreement is one, not intended to be enforceable, "binding in honour only". In order for a contract to be formed, the parties must reach mutual assent; this is reached through offer and an acceptance which does not vary the offer's terms, known as the "mirror image rule". An offer is a definite statement of the offeror's willingness to be bound should certain conditions be met. If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore a rejection of the original offer; the Uniform Commercial Code disposes of the mirror image rule in §2-207, although the UCC only governs transactions in goods in the USA. As a court cannot read minds, the intent of the parties is interpreted objectively from the perspective of a reasonable person, as determined in the early English case of Smith v Hughes, it is important to note that where an offer specifies a particular mode of acceptance, only an acceptance communicated via that method will be valid.
Contracts may be unilateral. A bilateral contract is an agreement in which each of the parties to the contract makes a promise or set of promises to each other. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the seller's promise to deliver title to the property; these common contracts take place in the daily flow of commerce transactions, in cases with sophisticated or expensive precedent requirements, which are requirements that must be met for the contract to be fulfilled. Less common are unilateral contracts in which one party makes a promise, but the other side does not promise anything. In these cases, those accepting the offer are not required to communicate their acceptance to the offeror. In a reward contract, for example, a person who has lost a dog could promise a reward if the dog is found, through publication or orally; the payment could be additionally conditioned on the dog being returned alive. Those who learn of the reward are not required to search for the dog, but if someone finds the dog and delivers it, the promisor is required to pay.
In the similar case of advertisements of deals or bargains, a general rule is that these are not contractual offers but an "invitation to treat", but the applicability of this rule is disputed and contains various exceptions. The High Court of Australia stated that the term unilateral contract is "unscientific and misleading". In certain circumstances, an implied contract may be created. A contract is implied in fact if the circumstances imply that parties have reached an agreement though they have not done so expressly. For example, John Smith, a former lawyer may implicitly enter a contract by visiting a doctor and being examined. A contract, implied in law is called a quasi-contract, because it is not in fact a contract. Quantum meruit claims are an example. Where something is advertised in a newspaper or on a poster, the advertisement will not constitute an offer but will instead be an invitation to treat, an indication that one or both parties are prepared to negotiate a deal. An exception arises if the advertisement makes a unilateral promise, such as the offer of a reward, as in the famous case of Carlill v Carbolic Smoke Ball Co, decided in nineteenth-century England.
The company, a pharmaceutical manufacturer, advertised a smoke ball that would, if sniffed "three times daily for two weeks", prevent users from catching the'flu. If the smoke ball failed to prevent'flu, the company promised that they would pay the user £100, adding that they had "deposited £1,000 in the Alliance Bank to show our sincerity in the matter"; when Mrs Carlill sued for the money, the company argued the advert should not be taken as a serious binding offer. Although an invitation to treat cannot be accepted, it should not be ignored, for it may affect the offer. For instance, where an offer is made in response to an invitation to treat, the offer may incorporate the terms of the invitation to treat. If, as in the Boots case, the offer is made by an action without any
In regulatory jurisdictions that provide for it, consumer protection is a group of laws and organizations designed to ensure the rights of consumers as well as fair trade and accurate information in the marketplace. The laws are designed to prevent the businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors, they may provide additional protection for those most vulnerable in society. Consumer protection laws are a form of government regulation that aim to protect the rights of consumers. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue, such as food. Consumer protection is linked to the idea of consumer rights and to the formation of consumer organizations, which help consumers make better choices in the marketplace and get help with consumer complaints. Other organizations that promote consumer protection include government organizations and self-regulating business organizations such as consumer protection agencies and organizations, the Federal Trade Commission in America and Better Business Bureaus in America and Canada, etc.
A consumer is defined as someone who acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing. Consumer interests can be protected by promoting competition in the markets which directly and indirectly serve consumers, consistent with economic efficiency, but this topic is treated in competition law. Consumer protection can be asserted via non-government organizations and individuals as consumer activism. Consumer protection law or consumer law is considered as an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services. Consumer protection covers a wide range of topics, including but not limited to product liability, privacy rights, unfair business practices, misrepresentation, other consumer/business interactions. It's a way of preventing frauds and scams from service and sales contracts, eligible fraud, bill collector regulation, utility turnoffs, personal loans that may lead to bankruptcy.
The following lists consumer legislation at the nation-state level. In the EU member states Germany and the United Kingdom there is the applicability of law at the EU level to be considered. In Australia, the corresponding agency is the Australian Competition and Consumer Commission or the individual State Consumer Affairs agencies; the Australian Securities and Investments Commission has responsibility for consumer protection regulation of financial services and products. However, in practice, it does so through run EDR schemes such as the Financial Ombudsman Service. In Brazil, consumer protection is regulated by the Consumer's Defense Code, as mandated by the 1988 Constitution of Brazil. Germany, as a member state of the European Union, is bound by the consumer protection directives of the European Union. A minister of the federal cabinet is responsible for protection. In the current cabinet of Angela Merkel, this is Katarina Barley; when issuing public warnings about products and services, the issuing authority has to take into account that this affects the supplier's constitutionally protected economic liberty, see Bundesverwaltungsgericht Case 3 C 34.84, 71 BVerwGE 183).
In India, consumer protection is specified in The Consumer Protection Act, 1986. Under this law, Separate Consumer Dispute Redress Forums have been set up throughout India in each and every district in which a consumer can file his complaint on a simple paper with nominal court fees and his complaint will be decided by the Presiding Officer of the District Level; the complaint can be filed by both the consumer of a goods as well as of the services. An appeal could be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission; the procedures in these tribunals are less formal and more people friendly and they take less time to decide upon a consumer dispute when compared to the years long time taken by the traditional Indian judiciary. In recent years, many effective judgment have been passed by some state and National Consumer Forums. Indian Contract Act, 1872 lays down the conditions in which promises made by parties to a contract will be binding on each other.
It lays down the remedies available to aggregate party if the other party fails to honor his promise. The Sale of Goods Act of 1930 act provides some safeguards to buyers of goods if goods purchased do not fulfill the express or implied conditions and warranties; the Agriculture Produce Act of 1937 act provides grade standards for agricultural commodities and live stock products. It specifies the conditions which govern the use of standards and lays down the procedure for grading and packaging of agricultural produce; the quality mark provided under the act is known as AGMARK-Agricultural Marketing. The Nigerian government has a duty to protect its people from any form of harm to human health through the use and purchase of items to meet daily needs. In light of this, the Nigerian Consumer Protection Council, whose aim is to protect and enhance consumers' interest through information and enforcement of the rights of consumers was established by an Act of Parliament to promote and protect the interest of consumers over all pro