Questions 1 Imagine that this article was an English statute. Reconsider Beswick (p 249) and White v Jones (p 702). 2 Reform of the privity rule is imminent in England: see what will, hopefully, soon be the Contracts (Rights of Third Parties) Act. Do you think this statute will read like PECL, Art 6:110? MISREPRESENTATION (a) Definition of misrepresentation
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Jacob J:… The law concerning non-fraudulent misrepresentation which induces a party to enter into a contract is that embodied under the common law (including equity) as modified by the 1967 Act as amended by the 1977 Act. Before the 1967 Act the remedy where a non-fraudulent misrepresentation of fact had been made and relied upon lay in equity. Equity could not provide damages: it provided rescission where this was possible. It was not in some cases for certain; in others there was doubt as to the law. It remains the law that a misrepresentation as to law, opinion, or a mere puff will not give rise to a remedy. The misrepresentation must be one of fact, not a mere unfulfilled promise. Nor is there a remedy unless the representee relies upon the representation. By 1967 there may also have been a remedy in negligence, where the misrepresentation of fact was negligently made and there was some kind of special relationship between the parties. Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] 2 All ER 575; [1964] AC 465 had recently been decided. Liability for negligent misrepresentation had become part of the law but its scope was not fully resolved.