Define misrepresentation in order to determine whether John has any claim

It is necessary to define misrepresentation in order to determine whether John has any claim under misrepresentation against Gina and the computer store. Misrepresentation can be defined as ‘a false statement of fact, made by one party before or at the time of contract which induces the other party to enter into the contract’ (Kelly, et al., 2005). Misrepresentation falls under the law of tort which is a civil wrong. It consists of a breach of a duty imposed by the law.

Misrepresentation can be categorized as fraudulent, negligent and innocent. In fraudulent misrepresentation the statement is made although it is known or believed to be false or made recklessly or careless as to whether it is true or false. The difficulty in fraudulent misrepresentation is in proving whether or not the seller believed the product was faulty, making them guilty of fraud.

Negligent misrepresentation occurs when a false statement is made in the belief that it is true without evidence of that belief. The two categories of negligent misrepresentation are at common law and under the misrepresentation Act, 1967.

When a false statement is made by a person who not only knows the statement to be true but has evidence for that belief innocent misrepresentation has occurred.

According to the Sales of Goods Act, Section 14 – 2&3, where the seller sells goods in the course of a business and the buyer expressly or by implication makes known to the seller any particular purpose for which the goods are being bought there is an implied condition that the goods supplied are reasonably fit for the purpose whether or not that is a purpose for which such goods are commonly supplied except where the circumstances that the buyer does not rely or that it is unreasonable for him to rely on the skill or judgment of the seller (Khoo., 2009).

In the case study John wanted a computer for the purpose of writing a best-selling novel. On viewing one that appeared to be ideal to him in a computer shop, Gina one of the employees informs him that the computer is just right for him, has a large memory and is reliable. According to the Sales of Goods Act, Section 14 – 2&3, it was implied by Gina that the computer was fit for John’s purpose of writing a novel. This implication made by Gina was a statement of opinion as was the case in Bisset v Wilkinson (1927). [1] . Gina was advertising the computer and merely making a sales boast which made her statement of the computer having a large memory and being reliable, liable under negligent misrepresentation, since she gave no factual data to support her belief. As such there was a false statement of fact since the computer did not have a large memory that was able to facilitate a novel. When a statement is a half-truth but misleading it is treated as false because facts are excluded. Dimmock v Hallett (1866) [2] .

It is important to note that silence is not misrepresentation as a statement must be written or oral. Turner v Green (1895) [3] .

John however was not induced into contract, as is made evident since he returned the following day with Hector, who had a degree in computing from a local college. For a misrepresentation to occur, one of the criteria is that the statement must actually induce the contract. Therefore the statement must have been addressed to the claimant and made to the claimant and not a third party. The claimant must be aware of the statement and must have relied upon the statement.

John did not believe the statements nor had he relied on his own judgment or skill. A similar situation occurred in the case of Attwood v Small (1838) [4] , for which there was no action for misrepresentation.

Hector told John the computer looks fine and is cheap, so John purchased the computer for £400. According to the Sales of Goods Act, section 14 – 2, if goods meet the standard that a reasonable person would consider satisfactory, taking into account any description of the goods, including the price and all other relevant circumstances, they are of satisfactory quality (Keenan., 2002). However, as is the case with John, one cannot reasonably expect the highest standards of quality if goods are bought very cheaply.

After purchasing the computer John starts typing and recognized the computer is slow in saving material and telephones Gina to complain. However, although Gina told him to bring in the computer so that she will check it out, John carries on typing. At this point, John would have been entitled to repudiate the contract and reject the computer under the Sales of Goods Act, section 12 – 15, since the seller is in breach of the contract and the computer did not fulfill the purpose for which it was purchased.

John completes his novel six months later but when he attempts to save the novel the computer memory runs out and the last two chapters are lost. In the Sales of Goods act, section 34 and 35, the law of acceptance states that in accordance with the contract, the buyer is bound to accept the goods which the seller delivers. However if goods do not meet the requirements of the contract, the buyer will have a claim against the seller. If goods have not been accepted, the buyer is entitled to reject the goods and claim his money back. However, if the goods have been accepted the buyer loses his right to reject the goods. Retaining the goods for a reasonable time without telling the seller that he had rejected the product meant that the product was accepted. (Keenan., 2002).

Since John delayed and did not return the computer, keeping it for six months, he is deemed to have accepted the situation and affirmed the contract. A similar case is that of Leaf v International Galleries (1950) [5] . Due to a delay Leaf could not claim compensation for the picture he had purchased five years ago.

John collapses in distress and throws the computer out of his window since he had no back-up copy or print out of the chapters. The doctrine of frustration states that in certain exceptional circumstances, events which take place after the contract may be so cataclysmic in effect that it is appropriate to treat them as bringing the contract to an end (Khoo., 2009).

John in his frustration threw the computer out of his window. Consequently the contract was brought to an end, relieving both parties from any further obligation.

In conclusion, in advising John whether he has any claim under misrepresentation against Gina and the computer shop, John will be told that Gina’s statements may have fallen under negligent misrepresentation. However, he is unable to bring claims of misrepresentation against her because although Gina’s statement may have been negligent it could have been excluded from misrepresentation because it was sales boast and mere opinions, not based on substantial facts. John finally lost all grounds for misrepresentation when he delayed six months without returning the computer. As such no claim could be brought against the computer store.