Abstract
During contractual negotiations, one party may lead the other into error, thus causing loss or damage. If misrepresentation is shown, the aggrieved party may therefore claim for damages or rescission. In the English law, it was for many years unclear whether a finding of misrepresentation required proof of deliberate, intentional fraud, or whether it could be analysed as a simple failure of consensus, in which case it would be sufficient to show negligence. According to the traditional rule, the misleading declaration had to be factually false, and concern an existing state of affairs or a verifiable past event. However, expressions of personal opinion or of future intention can mislead, although they cannot sensibly be considered as true or false. Further, in practice, many literally true sentences are liable to give false impressions. Such statements may be ambiguous or only partly true. Like linguists and ethical philosophers, the judges are confronted with recursive problems of understanding and re-interpretation. Citations from a number of celebrated English cases are given to show that in spite of significant developments, no legal rules or principles can satisfactorily account for intuitions concerning intentional behaviour and morality.
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Notes
But see Wittgenstein [5] on the impossibility of private language.
This authoritative judicial statement is often cited, for example by Denning LJ in Gould v Gould (1969) or by Lord Blackburn in 1877: “Brian […] says: ‘your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is…’. I take it, my Lords, that that, which was said 300 years ago and more, is the law to this day.” (Brogden v Metropolitan Ry 1877, per Lord Blackburn).
The word ‘reasonable’ denotes what is called the ‘objective test’ because it corresponds to the opinion of the judge rather than the contractor.
“I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no contract.” (Smith v Hughes 1871, per Blackburn LJ).
This objection is redolent of Donald Rumsfeld’s notorious press statement on “things we know that we don’t know and things we don’t know that we don’t know”.
A car had been described as a “1948 Morris 10 saloon.” Eight months later the dealers discovered that it was in fact a 1939 model.
In cases of perjury, on the contrary, the judgment depends on literal falsity. The difficulties of this approach are clear: “[I]f it is material to ascertain how many times a person has entered a store on a given day and that person responds to such a question by saying five times when in fact he knows that he entered the store 50 times that day, that person may be guilty of perjury even though it is technically true that he entered the store five times.” (Bronston v US, 1973, Fn 3).
See Charnock [11] for a discussion of ambiguity in the law.
This rule is not observed in the Monty Python film, the Holy Grail, when one of the Knights was thrown over the precipice having responded wrongly to the question “What’s your favourite colour?”.
Captain Fitzpatrick, Colonel Rich, Colonel Snow, General Taylor and Major Clench.
Mr Edmunds could not act on his own behalf because, under the Trade Descriptions Act, this was now a criminal rather than a civil matter. It is due to the precedent set that airline companies are now obliged to compensate passengers who find themselves victims of the practice of overbooking.
See in particular Hume [12: 516–25] on the effects of promises.
The name is historically related to the medieval distinction between “modus’ and “dictum’, roughly corresponding to Searle’s [14: 54] distinction between propositional content and illocutionary force.
As in “The applause literally raised the roof”.
As in “I’m warning you…”.
As when a criminal is ‘invited’ to present himself for sentencing, or when his friend ‘suggests’ that he should make a run for it before it is too late.
Searle [14: 62] attempts to account for speech acts in terms of rules, but is forced to present as defective those examples which do not correspond to the rules proposed.
The former English Prime Minister Tony Blair continues to assert that his own (false but apparently sincere) belief in the existence of Irakian weapons of mass destruction is sufficient justification for war.
Kripke [15] concludes that the application of rules depends ultimately not on fact but on a social consensus.
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Cases Cited
Baily v Merrell. 1688. 81 ER 81.
Bissett v Wilkinson. 1927. PC 177.
British Airways Board v Taylor (Trading Standards Officer). 1975. WLR 13 (HL).
Brownlie v Campbell. 1880. AC 925 (HL).
Dick Bentley Productions v Smith (Motors). 1965. 1 WLR 623 (CA).
Dimmock v Hallet. 1866. 2 Ch App 21.
Derry v Peek. 1888. 1 WLR 623 (CA); [1889] 14 AC 337 (HL).
Edgington v Fitzmaurice. 1885. 29 ChD 459 (CA).
Esso Petroleum v Mardon. 1976. QB 801 (CA).
Fitzpatrick v Kelly QB. 1873.
Gordon v Selico. 1986. 18 HLR 219 (CA).
Heilbut Symons v Buckleton. 1913. AC 30 (HL).
Oscar Chess v Williams CA. 1957. 1 WLR 370 (CA).
Peek v Gurney. 1873. 6 LR 377 (CA).
Raffles v Wichelhaus. 1864. 159 ER 275.
Redgrave v Hurd CA. 1881. 20 ChD 1 (CA).
Reese River Silver v Smith. 1867. 2 Eq 264 (CA).
Roscorla v Thomas KB. 1842. 3 QB 234.
Smith v Chadwick. 1882. 20 ChD 27 (CA).
Smith v Chadwick .1884. 9 AC 187 (HL).
Smith v Hughes. 1871. LR 6 QB 597.
Smith v Land and House Property. 1884. 28 ChD 7 (CA).
Spice Girls v Aprilia CA. 2002. WLR 191143 (HC); 8 ChD 27 (CA) US cases.
US Cases
Bronston v US. 1973. 409 US 352.
Frigaliment Importing v BNS International Sales. 1960. 190 F.Supp. 116 Statutes.
Statutes
Directors’ Liability Act .1890. (c. 64).
Misrepresentation Act. 1967. (c. 7).
Trade Descriptions Act. 1968. (c. 29).
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Charnock, R. The Linguistics of Misrepresentation: Intentions and Truth Values. Int J Semiot Law 23, 427–449 (2010). https://doi.org/10.1007/s11196-010-9165-x
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DOI: https://doi.org/10.1007/s11196-010-9165-x