Representation of Client in Contract Law Case

Representation of Client in Contract Law typesetters caseTHE INTRODUCTIONAbstract from the question condition, on the purpose to advice on Arnold, it is brisk and crucial to scrape up out whether or non a promise has been formed between the parties involved so the locus standi1 of Arnold stick out be tracked. Hence, with the establishment of locus standi, Arnold whitethorn indeed tooshie detract feat on issues he has encountered to the parties. It is simply indicating that, on that point must be a mutual agreement which is leg completelyy enforceable between parties involved. In some other word, there must be an existence of consensus ad idem.2 Whereby Lord Wilberforce a say on this issue in The Eurymedon as below- 3 position law, having committed itself to a rather technical and schematic doctrine of contract, in application appropriates a practical approach, often at the cost of forcing the details to chalk up uneasily into the marked slots of offer, acceptance, an d consideration In summary, In consecrate to penury remedies, a valid contract sh whole consist of offer, acceptance, and consideration whereby this visualizes and that gives locus standi to the claimant to ply out contractual action towards the defendant. The issue in this question would be seeking for an evaluation on whether the instruction clear up is a experimental condition or representation. If it is a term, it whitethorn lead to breach of contract whereas, if it is representation, it is absolute to seek for remedies available for the claimant.Establish the Contractual Relationship with the claimantTherefore, it bay window be de n wizd that the claimant, Arnold must suck in try out his contractual birth with the low defendant, William to touch on his claim on his misfortune incident since he considers the deal given by William a bad whiz. It is thus submitted that, William nooky be categorize as an offeree whereby his enquiries is just alone an invitatio n to treat since he is just plainly do a request due to his needs. An invitation to treat, as per Treitel When parties negotiate with a view to do a contract, m either preliminary communication whitethorn pass between them forward a definite offer is do4 establish on the occurrence given, Arnold is indeed on the look out for a house in the newly built Kenwood putting surface and sought for Williams reference work who is a house element. As a result, it is submitted that Arnold is making an Invitation to treat in lieu of an offer like what has been illustrated in the case of Gibson 5. Whereas, on some other hand, in the light of Storer v Manchester,6 in accordance to offer as defined by Professor Treitel, William has expressly show his departingness by self-aggrandizing Arnold particulars of that house. 7 On the surface, contractual relationship thereby established.Determining the rumor do is a term or representationThus, It would be imperative to then applying Fletch e LJs guideline as determined down in Heilsolely Symons v Buckleton to find out accomplishable contractual action.8 It was held that a vague avowal would touchstone to representation instead of a term. Whereby in Dimmock v Hallet that draw the the three estates as fertile and improvable is constitute to a representation. 9 Likewise, in this scenario, statement make by William that a hypermarket will be open in about 3 months is said to be a representation. In a nutshell, the core issue in this scenario would be whether William as an representor has misrepresented the circumstances to Arnold, the representee which by any chance may give rise to liabilities and Arnold shall be advise on the netherseal of the probabilities for being granted for possible remedies.The onus to give the offeror has misrepresented the accompanimentsIt is advised that, in order to determine whether one has been misrepresented to the claimant, there ar elements to prove an actionable conjuration . The representation made by the representor must be unambiguous fabricated statement of fact which is addressed to the party misled and which includes that party to give in into a contract.10 This excessively signifying that, there must be a false statement of existing fact or law, and it is addressed to the party misled which has materially induces the party to embark into a legally binding agreement. As such, if the statement made is held to be a mere puff, a party will non be darned nether contractual liabilities. Notwithstanding with that, If all the elements have been satisfied, misrepresentation then has success experty conjure upd at the first glance and remedies is likely to be granted.Elements to be proved on each statement madeEssentially, in order for a misrepresentation to be stand in this circumstance, the statement made must non be an opinion or mere puff. The defendant will therefore argue the statement made is merely an opinion hence, the claim towards him wi ll not be succeeded as laid down in Bisset v Wikinson.11 Nevertheless, contrary with the mentioned point, In Smith v Land Home Property Co. Ltd ,12 It can be rebutted that the statement is unless an existing fact as per Bowen LJ 13 The one who k in a flashs the fact best involves in truth often a statement of a material fact It is even so may be argued that, Arnold should have check the facts instead of relying on it hence, it is not at fault of the defendant. On another hand, William as the house broker should have disclose companionship than any ordinary person as he possesses a specific skill as held in Esso vegetable oil Co. Ltd v Mardon.14 In addition, as Lord Evershead MR has uttered in brownish v Raphael15 , where such a person were in a weaken position than the other party to check the facts to back up his opinion, but did not do so, such person will be liable(predicate) for misrepresentation.16 From the fact, William has described the Kenwood Park as Gated and Gu arded and it was the some desirable airscrew within the vicinity that turned out to be untrue. William as a house broker hold a better position than Arnold to ensure his opinion is true. Further more, he should have known the fact that Heavenly Homes is more popular since it is a well-known fact as compared to the Kenwood Park. Besides, it is of common knowledge that, guards must be employed by the residence but not the developers. William is therefore made a statement of fact and by possessing a special knowledge failed to check even he is in better position to do so. It can be said prima facie that he has misrepresented a statement of fact. In contrast, William may also raise an origin that, in general, a statement of a future tendency will not constitute as a statement of fact therefore it is of no effect for him to be liable at a lower place misrepresentation on the grounds of Lord Wilberforce in British Airways Board v Taylors.17 It would not be just and fair as it is impo ssible for one to foresee the future and it is unpredictable and that binds the claimant. Indeed, William has mentioned that a hypermarket will be opened in about 3 months within Kenwood Park which amount to a statement as to the future. However, William cannot walk away based on that ground as Arnold may argue that a statement as to the future, can implicitly contain a statement of fact. In the light of spice up Girls Ltd v Aprilia World Service BV , It is illustrated that if the maker of the statement did not very hold the intention or belief at the time of making it, he will misrepresenting the fact.18 As grasped from the fact, it is opined that William did not hold the intention indisputably by the time making the statement but he was said it with full faith by stating a specific timeframe that a Hypermarket will be opened in 3 months within Kenwood Park,. Hence, it is argued that the statement given are not merely an intention since at the time of contract, he believes himsel f is making an existing fact which at a higher(prenominal) possibility that the hypermarket will be built and well-established within 3 months. As held in Edgington v Fitzmaurice, the statement made by William howsoever it may be controversial to be an intentional statement it still amounts to a statement of fact.19 Even so, William may still argue that, in his at a lower placestanding, he does not know that the Kenwood Park will not be Gated and Guarded in which is a half(a) true statement, therefore, it can be argued that part he has misstate was noneffervescent apart. Action shall not be taken towards him as he says zip fastener about that since it was held in Fletcher v Krell that silence or non-disclosure of fact does not give rise to liability.20 Hence, William may not be liable under misrepresentation at this juncture. Notwithstanding with the above issue, Arnold can demolish that argument by claiming there is a set of exceptional rules whereby a half-true statement is de emed to be a misrepresentation as laid down in Nottingham Patent Brick Tile Co. v Butler.21 Moreover, it is submitted that, there is a fiduciary relationship between both of them in which it is held that the party has the duty to disclose all the necessary fact to ensure a fair transaction under the light of Tate v Williamson.22 By juxtaposing the law and the fact, it is a crucial fixings for William to ensure all the necessary facts has been told since it might affect the transaction. As a result, silence in this scenario does give rise to liability at the first glance. In accordance to the ratio of With v O Flanagan, it can also be argued that, whenever there is any occurrence of changes in the circumstances, the party should have check so the existing fact would not be false and misled the party.23 On the fact, the plan for the hypermarket has been scrapped by the developers to make way for a semisynthetic lake. establish on that, William was in fact, did not check and inform any changes to Arnold before signing the agreement. Also, another vital issue would be to prove whether or not has the statement of fact made by the representor has materially induced the represetee enter into the contract. As per Jessel MR has expressed in Mathias v Yetts 24 if a man has a material misstatement made to him which way, form its nature, induce him to enter into the contract, it is an inference that he is induced to enter into contract by it. You need not prove it affirmatively. On the fact, The inducement has shown when Arnold actually became interested and gave 10% of the price of the house to William as a down payment later on he listened to Williams statements where he described the property is gated and guarded, there will be a hypermarket opening in within 3 months and illustrated it as the most desirable property in the vicinity that is not wholly true. Attwood v Small.25 Apart from that, William may, at this stage, argue that the statement made must be done d irectly by the representor to the representee in which the house owner is derriere whereas he is just merely an innocent third party. Hence, action could not be taken towards William. However, on the grounds of Conlon v Simms whereby it says, the statement made can also be done through an authorised agent.26 Based on this sense, William as a house broker has acted on behalf of tail to deal with William and the statement made by him has indeed misled Arnold to embark into a bad deal. Nonetheless, According to Smith v Chadwick, it is submitted that if the representee knows it is a representation statement, then, it shall not be taken action on misrepresentation.27 However, it is argued that Arnold does not aware of the statements since he intends to discontinue with the agreement. Afterhe knows the facts told is not true. Hence, it is prima facie that , in the light of Horsfall v Thomas, the claimant, Arnold can now take action towards William under misrepresentation as all the elem ents has been satisfied.28 The next caveat would be to determine which type of misrepresentation can the claimant claim under and the possibility of Arnold to rescind the contract.Type of MisrepresentationIt may be submitted that Arnold can claim for his rescission subject to the bars to rescission as he wishes to discontinue with the purchase. It is advised that, Arnold may seek for remedies under Fraudulent Misrepresentation or Negligent Misrepresentation which both has got unalike components to be proved and the burden of proof lies on the representee. First and foremost, in order to claim under Fraudulent Misrepresentation which is governed under the tort of deceit, it must be proven that the statement made knowingly, without belief in its truth, reckless whether it will be true or false as stated under Derry v Peek.29 However, in this case, Fraudulent may not be successfully stand as William do not make the statement knowingly as the actual fact is, the plan for the hypermarke t has been changed unbeknownst(predicate) to all parties by the developer. Therefore, the claim would unlikely to be successful under Fraudulent Misrepresentation as the standard of proof is rather high. The alternate way would be Negligent Misrepresentation under Negligent Misstatement in common law on the grounds of Hedley Bryne v Heller.30 In order to claim under this type of Misrepresentation, it is needed to prove the existence of special relationship. On the fact, there is special relationship between them are on a dealing of Business. In addition, as laid down in William v Natural Life Health Food, special relationship can be tracked since he possesses special knowledge which in fact he is a house broker.31 On the fact, it can be argued that, though William maybe believes all the statement made by him to be true, he has the duty to check. On this stage, it may be said that Arnold is at the higher chance to get rescission. William may claim that, there is one possible bar to rescission available which is the lapse of time as described in Leaf vInternational GalleriesOn the fact, Arnold has decided to take contractual action only on a week before signing the agreement which the lapse of time argument would not redeem rescission ineffective. Thus, rescission is still available where he can call back his paid down payment as well if he successfully claims under Negligent Misrepresentation. On another hand, Arnold may also take action against John as he is the owner of the house and do not disclose the defects of the property. On the fact, there have been a a few(prenominal) cracks appearing in some parts of the house. However, it is said the representation is made between William and Arnold as a lawful authorised agent. Therefore, misrepresentation could not occur in this scenario. In a nutshell, Arnold as a representee is now at a higher to claim for remedies which are rescission and modify as William has made a false statement of existing fact and t hat materially induced and misled to Arnold to embark into the contract on the purchase of the property.