THE DEFENDANT

THE INTRODUCTION

Abstraction from the inquiry given, on the intent to advice on Arnold, it is critical and important to happen out whether or non a contract has been formed between the parties involved so the venue standi [ 1 ] of Arnold can be tracked. Hence, with the constitution of venue standi, Arnold may so can take action on issues he has encountered to the parties. It is merely bespeaking that, there must be a common understanding which is lawfully enforceable between parties involved. In another word, there must be an being of consensus ad idem. [ 2 ] Whereby Lord Wilberforce a say on this issue in The Eurymedon as below: – [ 3 ] ” … English jurisprudence, holding committed itself to a instead proficient and conventional philosophy of contract, in application takes a practical attack, frequently at the cost of coercing the facts to suit anxiously into the pronounced slots of offer, credence, and consideration… ” In drumhead, In order to claim redresss, a valid contract shall dwell of offer, credence, and consideration whereby this ensures and that gives locus standi to the claimant to transport out contractual action towards the suspect. The issue in this inquiry would be seeking for an rating on whether the statement made is a term or representation. If it is a term, it may take to transgress of contract ; whereas, if it is representation, it is imperative to seek for redresss available for the claimant.

Establish the Contractual Relationship with the claimant

Therefore, it can be denoted that the claimant, Arnold must hold turn out his contractual relationship with the first suspect, William to continue his claim on his bad luck incident since he considers the trade given by William a bad one. It is so submitted that, William can be categorised as an offeree whereby his questions is merely simply an invitation to handle since he is merely obviously doing a petition due to his demands. An invitation to handle, as per Treitel: – “ … When parties negotiate with a position to doing a contract, many preliminary communicating may go through between them before a definite offer is made… ” [ 4 ] Based on the fact given, Arnold is so on the expression out for a house in the freshly built Kenwood Park and sought for William ‘s audience who is a house agent. As a consequence, it is submitted that Arnold is doing an Invitation to handle in stead of an offer like what has been illustrated in the instance of Gibson [ 5 ] . Whereas, on another manus, in the visible radiation of Storer v Manchester, [ 6 ] in conformity to offer as defined by Professor Treitel, William has expressly show his willingness by giving Arnold specifics of that house. [ 7 ] On the surface, contractual relationship thereby established.

Determining the statement made is a term or representation

Therefore, It would be imperative to so using Fletche LJ ‘s guideline as laid down in Heilbut Symons v Buckleton to happen out possible contractual action. [ 8 ] It was held that a obscure statement would amount to representation alternatively of a term. Whereby in Dimmock V Hallet that described the land as ‘fertile and improvable ‘ is constitute to a representation. [ 9 ] Likewise, in this scenario, statement made by William that ‘a hypermarket will be opened in approximately 3 months ‘ is said to be a representation. In a nutshell, the nucleus issue in this scenario would be whether William as an representor has misrepresented the facts to Arnold, the representee which by any opportunity may give rise to liabilities and Arnold shall be advised on the land of the chances for being granted for possible redresss.

The burden to turn out the offerer has misrepresented the facts

It is advised that, in order to find whether one has been misrepresented to the claimant, there are elements to turn out an actionable deceit. The representation made by the representor must be unambiguous false statement of fact which is addressed to the party misled and which includes that party to come in into a contract. [ 10 ] This besides meaning that, there must be a false statement of bing fact or jurisprudence, and it is addressed to the party misled which has materially induces the party to ship into a lawfully binding understanding. As such, if the statement made is held to be a mere whiff, a party will non be blamed under contractual liabilities. Notwithstanding with that, If all the elements have been satisfied, deceit so has successfully raised at the first glimpse and redresss is likely to be granted.

Elementss to be proved on each statement made

Basically, in order for a deceit to be stand in this circumstance, the statement made must non be an sentiment or mere whiff. The suspect will therefore argue the statement made is simply an sentiment ; hence, the claim towards him will non be succeeded as laid down in Bisset V Wikinson. [ 11 ] Nevertheless, contrary with the mentioned point, In Smith v Land & A ; Home Property Co. Ltd, [ 12 ] It can be rebutted that the statement is nevertheless an bing fact as per Bowen LJ: [ 13 ] ” … The 1 who knows the fact best involves really frequently a statement of a material fact… ” It is however may be argued that, Arnold should hold look into the facts alternatively of trusting on it ; hence, it is non at mistake of the suspect. On another manus, William as the house agent should hold better cognition than any ordinary individual as he possesses a particular accomplishment as held in Esso Petroleum Co. Ltd v Mardon. [ 14 ] In add-on, as Lord Evershead MR has uttered in Brown V Raphael [ 15 ] , where such a individual were in a better place than the other party to look into the facts to endorse up his sentiment, but did non make so, such individual will be apt for deceit. [ 16 ] From the fact, William has described the Kenwood Park as ‘Gated and Guarded ‘ and it was the most desirable belongings within the locality that turned out to be untrue. William as a house agent hold a better place than Arnold to guarantee his sentiment is true. Furthermore, he should hold 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 cognition that, guards must be employed by the abode but non the developers. William is hence made a statement of fact and by possessing a particular cognition failed to look into even he is in better place to make so. It can be said leading facie that he has misrepresented a statement of fact. In contrast, William may besides raise an statement that, in general, a statement of a future purpose will non represent as a statement of fact therefore it is of no consequence for him to be apt under deceit on the evidences of Lord Wilberforce in British Airways Board V Taylors. [ 17 ] It would non be merely and just as it is impossible for one to anticipate the hereafter and it is unpredictable and that binds the claimant. Indeed, William has mentioned that a hypermarket will be opened in approximately 3 months within Kenwood Park which sum to a statement as to the hereafter. However, William can non walk off based on that land as Arnold may reason that a statement as to the hereafter, can implicitly incorporate a statement of fact. In the visible radiation of Spice Girls Ltd V Aprilia World Service BV, It is illustrated that if the shaper of the statement did non truly keep the purpose or belief at the clip of doing it, he will beliing the fact. [ 18 ] As grasped from the fact, it is opined that William did non keep the purpose indisputably by the clip doing the statement but he was said it with full religion by saying a specific timeframe that a Hypermarket will be opened in 3 months within Kenwood Park, . Hence, it is argued that the statement given are non simply an purpose since at the clip of contract, he believes himself is doing an bing fact which at a higher 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 knowing statement ; it still amounts to a statement of fact. [ 19 ] Even so, William may still reason that, in his apprehension, he does non cognize that the Kenwood Park will non be Gated and Guarded in which is a half true statement, hence, it can be argued that portion he has misstate was soundless apart. Action shall non be taken towards him as he says nil about that since it was held in Fletcher V Krell that silence or non-disclosure of fact does non give rise to liability. [ 20 ] Hence, William may non be apt under deceit at this occasion. Notwithstanding with the above issue, Arnold can pulverize that statement by claiming there is a set of exceeding regulations whereby a half-true statement is deemed to be a deceit as laid down in Nottingham Patent Brick & A ; Tile Co. V Butler. [ 21 ] Furthermore, it is submitted that, there is a fiducial relationship between both of them in which it is held that the party has the responsibility to unwrap all the necessary fact to guarantee a just dealing under the visible radiation of Tate v Williamson. [ 22 ] By juxtaposing the jurisprudence and the fact, it is a important factor for William to guarantee all the necessary facts has been told since it might impact the dealing. As a consequence, silence in this scenario does give rise to liability at the first glimpse. In conformity to the ratio of With 5 O ‘ Flanagan, it can besides be argued that, whenever there is any happening of alterations in the fortunes, the party should hold cheque so the bing fact would non be false and misled the party. [ 23 ] On the fact, the program for the hypermarket has been scrapped by the developers to do manner for a semisynthetic lake. Based on that, William was in fact, did non look into and inform any alterations to Arnold before subscribing the understanding. Besides, another critical issue would be to turn out whether or non 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 adult male has a stuff misstatement made to him which manner, organize its nature, bring on him to come in into the contract, it is an illation that he is induced to come in into contract by it. You need non turn out it affirmatively. ‘ On the fact, The incentive has shown when Arnold really became interested and gave 10 % of the monetary value of the house to William as a down payment after he listened to William ‘s statements where he described the belongings is gated and guarded, there will be a hypermarket gap in within 3 months and illustrated it as the most desirable belongings in the locality that is non entirely true. Attwood v Small. [ 25 ] Apart from that, William may, at this phase, argue that the statement made must be done straight by the representor to the representee in which the house proprietor is John whereas he is merely simply an guiltless 3rd party. Hence, action could non be taken towards William. However, on the evidences of Conlon v Simms whereby it says, the statement made can besides be done through an authorized agent. [ 26 ] Based on this sense, William as a house agent has acted on behalf of John to cover with William and the statement made by him has so misled Arnold to ship into a bad trade. However, Harmonizing to Smith v Chadwick, it is submitted that if the representee knows it is a representation statement, so, it shall non be taken action on deceit. [ 27 ] However, it is argued that Arnold does non cognizant of the statements since he intends to stop with the understanding. Afterhe knows the facts told is non true. Hence, it is leading facie that, in the visible radiation of Horsfall v Thomas, the claimant, Arnold can now take action towards William under deceit as all the elements has been satisfied. [ 28 ] The following caution would be to find which type of deceit can the claimant claim under and the possibility of Arnold to revoke the contract.

Type of Misrepresentation

It may be submitted that Arnold can claim for his recission topic to the bars to recission as he wishes to stop with the purchase. It is advised that, Arnold may seek for redresss under Fraudulent Misrepresentation or Negligent Misrepresentation which both has got different constituents to be proved and the load of cogent evidence prevarications on the representee. First and first, in order to claim under Fraudulent Misrepresentation which is governed under the civil wrong of fraudulence, it must be proven that the statement made wittingly, without belief in its truth, foolhardy whether it will be true or false as stated under Derry V Peek. [ 29 ] However, in this instance, Fraudulent may non be successfully stand as William do non do the statement wittingly as the existent fact is, the program for the hypermarket has been changed unbeknown to all parties by the developer. Therefore, the claim would unlikely to be successful under Deceitful Misrepresentation as the criterion of cogent evidence is instead high. The alternate manner would be Negligent Misrepresentation under Negligent Misstatement in common jurisprudence on the evidences of Hedley Bryne v Heller. [ 30 ] In order to claim under this type of Misrepresentation, it is needed to turn out the being of particular relationship. On the fact, there is particular relationship between them are on a dealing of Business. In add-on, as laid down in William v Natural Life Health Food, particular relationship can be tracked since he possesses particular cognition which in fact he is a house agent. [ 31 ] On the fact, it can be argued that, though William possibly believes all the statement made by him to be true, he has the responsibility to look into. On this phase, it may be said that Arnold is at the higher opportunity to acquire recission. William may claim that, there is one possible saloon to recission available which is the oversight of clip as described in Leaf V

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On the fact, Arnold has decided to take contractual action merely on a hebdomad before subscribing the understanding which the oversight of clip statement would non render recission uneffective. Therefore, recission is still available where he can retrieve his paid down payment every bit good if he successfully claims under Negligent Misrepresentation. On another manus, Arnold may besides take action against John as he is the proprietor of the house and do non unwrap the defects of the belongings. On the fact, there have been a few clefts looking in some parts of the house. However, it is said the representation is made between William and Arnold as a lawful authorized agent. Therefore, deceit could non happen in this scenario. In a nutshell, Arnold as a representee is now at a higher to claim for redresss which are recission and amendss as William has made a false statement of bing fact and that materially induced and misled to Arnold to ship into the contract on the purchase of the belongings.