example, in Clark v Lindsay, the plaintiff had purchased a ticket giving him access to premises which overlooked the route of King Edward VII’s coronation procession. The procession was cancelled and the question arose whether the plaintiff was entitled to recover the £50 he had paid. It was held that, normally, the contract would have been void on the basis of a common mistake of fact that, unknown to the parties, it was inevitable that the procession would be postponed at the time the contract was made (on such mistakes, see, further, Chapter 6). This would have enabled the plaintiff to recover his money. However, on learning that postponement was likely, the parties had varied the contract by inserting a clause entitling the plaintiff to the room whenever the procession took place. This precluded the normal operation of the law on mistake. TERMS AND REPRESENTATIONS : The history of the distinction between contractual terms and mere representations is important as it serves to explain some of the more extreme interpretations of what is a contractual term. For present purposes, the watershed date is 1967, when the Misrepresentation Act was passed. Prior to that date, unless it could be proved that a non-contractual representation had

doi:10.4324/9781843141518-97

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example, in Clark v Lindsay, the plaintiff had purchased a ticket giving him access to premises which overlooked the route of King Edward VII’s coronation procession. The procession was cancelled and the question arose whether the plaintiff was entitled to recover the £50 he had paid. It was held that, normally, the contract would have been void on the basis of a common mistake of fact that, unknown to the parties, it was inevitable that the procession would be postponed at the time the contract was made (on such mistakes, see, further, Chapter 6). This would have enabled the plaintiff to recover his money. However, on learning that postponement was likely, the parties had varied the contract by inserting a clause entitling the plaintiff to the room whenever the procession took place. This precluded the normal operation of the law on mistake. TERMS AND REPRESENTATIONS

ABSTRACT

The history of the distinction between contractual terms and mere representations is important as it serves to explain some of the more extreme interpretations of what is a contractual term. For present purposes, the watershed date is 1967, when the Misrepresentation Act was passed. Prior to that date, unless it could be proved that a non-contractual representation had been made fraudulently3 or fell within the fault based rule on negligently caused economic loss resulting from a misstatement4 there was no available action for damages. However, subject to some restrictions, a contract induced by a mere representation could be rescinded.5 The importance of the distinction between contractual terms and representations is not as great as it used to be since the Misrepresentation Act now allows an action for damages for negligent misrepresentation6 and gives the court a discretion to award damages in lieu of rescission for a purely innocent misrepresentation.7