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"The Law In Relation To Misrepresentation Drives A 'coach And Four' Through The Hallowed Principle Of Caveat Emptor" Discuss.

1549 words - 6 pages

In order to answer the question it is necessary to define each phrase in turn. Firstly, the idea of the law in relation to misrepresentation. A representation is 'a statement of fact made by one party to the contract (the representor) to the other (the representee) which, while not forming a term of the contract, is yet one of the reasons that induces the representee to enter into the contract' Cheshire, Fifoot and Furmston. It therefore follows that a misrepresentation is merely a representation that is untruthful. Subsequently, the phrase 'coach and four' can be interpreted, in this case, to mean 'destroys' or 'undermines' the 'venerated' or 'honoured' principle of caveat emptor. Caveat emptor itself is a highly recognised expression in the discipline of law, it is Latin for 'let the buyer beware' that is, let the buyer examine the article he is buying, and act on his own judgement.The argument that needs to be addressed here is whether the law in relation to misrepresentation does undermine the principle of caveat emptor but if not, does it then fundamentally uphold it.Historically there was a belief in a 'laissez faire' approach to law; that all men are equal in forming and implementing contracts. In this sense it was extensively upheld that the buyer themselves must take care to ensure that the goods (or whatever is the subject) that they are contracting over are free from defects of quality or condition, that is that the risk is borne by the purchaser and not by the seller. It was given that there were equal bargaining powers between the two parties contracting; however, this isn't always true. It was discovered in the doctrine of caveat emptor that the buyer was naturally disadvantaged by a lack of knowledge or expertise about what he was buying. As a result of this many in discrepancies of contracts came about. The Judiciary were reluctant to intervene in contractual disputes, in particular they were unwilling to imply terms into contracts where there were no express terms. Over time judicial policy changed and judges became more willing to imply terms into certain contracts. So, within the last decade there has been a shift to a more modern approach to the law, in a move away from 'laissez faire' towards consumer protectionism, there has developed a trend towards a recognition that the nature of the transaction between buyer and seller has so changed that the law must adapt itself to cope with that change.It is accepted that false statements of fact can be used to induce a person to enter into a contract and this is termed a 'misrepresentation'. It is necessary to differentiate between a misrepresentation and a statement which later becomes a term of the contract; if the statement becomes a term of the contract then a remedy will be sought when a breach of that contract occurs. That is to say that the misrepresentation must go to the root of the contract for it to be seen as relevant in deceiving the contractor. It must, however, be a...

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