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Misrepresentation in "selling" a contract?

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    #41
    Hey guys,

    I have a Master's Degree in law and an LPC. Misrepresentation is a concept in contract law and whilst it can be used in consumer law, it is quite wrong for Which to say it only applies in consumer law. Misrepresentation also applies to commercial contracts.

    The Wikipedia article is better - Misrepresentation - Wikipedia

    The Misrepresentation Act 1967 does not create the concept of Misrepresentation in contract law, it only modifies it. It is mainly used because of its provisions on damages. It basically says if someone makes an innocent misrepresentation but cannot prove they had reasonable grounds to make it then damages will be calculated as though it was a deliberate fraud.

    s2 Damages for misrepresentation.
    "(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true."

    Comment


      #42
      Originally posted by Vordrak View Post
      Hey guys,

      I have a Master's Degree in law and an LPC. Misrepresentation is a concept in contract law and whilst it can be used in consumer law, it is quite wrong for Which to say it only applies in consumer law. Misrepresentation also applies to commercial contracts.

      The Wikipedia article is better - Misrepresentation - Wikipedia

      The Misrepresentation Act 1967 does not create the concept of Misrepresentation in contract law, it only modifies it. It is mainly used because of its provisions on damages. It basically says if someone makes an innocent misrepresentation but cannot prove they had reasonable grounds to make it then damages will be calculated as though it was a deliberate fraud.

      s2 Damages for misrepresentation.
      "(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true."
      How likely is the OP to win damages?

      Comment


        #43
        the reality is that if it ever got to court (it won't), and misrepresentation is used to base teh case on the following will hapen.

        1) The agency will deny misrepresentation. They will asy that there was, to the best of their knowledge 6 months of work for a good quality contractor.
        2) They will then submit the signed contract, with a notice period.
        3) They will then say that the notice period was invoked for (any reason but if it was me I'd say the contractor was tulip)
        4) The judge will then, in the absence of any hard evidence of misrepresenation (it's just word against word), rule that the notice period in the contract overrules any previous verbal or written agreements/representations.
        5) The judge will then decide whether the contractor now has to pay the agency's legal costs........ (this is too big for small claims).
        See You Next Tuesday

        Comment


          #44
          Update

          Ok, this is early days, but so far neither of the legal advisors I have spoken to have agreed with most of the posts on here. They both think the case is strong. Next up is some time with a commercial law specialist.

          I'll keep you posted.

          Because I can't resist it, a note on the overall attitude on here:

          Many people have cited the "that's just how it is" side of things - "this is a brutal business", "people get screwed over all the time", "it's happened to me loads of times", etc. etc.

          Yes. Yes, it is like that. And it's getting worse.

          The reason it's become like that is because people don't fight back. They make excuses (see above) and just take it, which emboldens the wrongdoers and so the malpractice becomes entrenched. The reason I have sued six times and won six times isn't because I got a lot of money out of it - I didn't. It's because it's the right thing to do. So rather than snarly trolling at those who try to make things better on your behalf, try standing up for yourselves and your fellow contractors. THAT is part of contracting, NOT getting screwed over.

          Soap box ends. Please note the lack of personal insults and if you must respond, do it in kind.

          Comment


            #45
            So work your notice, get another contract and just get on with it. No way will you get paid out for losses while you are earning as you've lost nothing. What are you going to do? Sit there and not work and live of the money awarded in your case?

            There are much easier ways out of this.

            They both think the case is strong
            Nothing to do with this is how they make money? Isn't the whole situation you are in down to someone telling you what you want to here to line their own pockets?
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #46
              Originally posted by Old Greg View Post
              How likely is the OP to win damages?
              It depends on what he can prove -

              * The misrepresentation the agent made to him.
              * That it was never really a 6 month contract.
              * The losses he has suffered

              The agent however would point to the contract and say the contractor had been told it could be terminated for any reason on notice at any time. They might also say they relied on good faith on information from the client.

              It will occurs to me however that if the client misled then there could be a claim in the tort of deceit. A lot of contractors charge more for contracts which are far away or short. They charge less for homeworking.

              If that applies to OPs business they could claim for the fee difference. OP could say that if they knew it was only 3 months or whatever they would have charged 20% more. They would need some evidence that was so.

              Deceit / fraud claims can and in my view should be brought by contractors. However there are strict rules and he would probably want a solicitor.

              Comment


                #47
                Originally posted by Whumpie View Post
                Ok, this is early days, but so far neither of the legal advisors I have spoken to have agreed with most of the posts on here. They both think the case is strong. Next up is some time with a commercial law specialist.

                I'll keep you posted.
                Thanks. And good luck.

                Whilst I am VERY sceptical about your chances of success, shafting an agency would make me smile.
                See You Next Tuesday

                Comment


                  #48
                  Thanks for this - it's really useful stuff and backs up what I've been told so far by solicitors. But if it does go forward it would definitely need a specialist, as you say.

                  What I'm hoping is that I can land another role quickly, in which case I can just write to the previous client and point out how legally dodgy their practice is so they can change their ways. But if - as is often the case around here - I have a long gap to my next contract, and if the specialist thinks there is a case, then I will take it to them.

                  What I don't get is why so many people seem to view "just bend over and take it" as some kind of macho stance. It's the opposite. We have a duty to protect our industry from dodgy practice, and "just move on" does the opposite. It's just a mask for laziness and/or cowardice.

                  Originally posted by Vordrak View Post
                  It depends on what he can prove -

                  * The misrepresentation the agent made to him.
                  * That it was never really a 6 month contract.
                  * The losses he has suffered

                  The agent however would point to the contract and say the contractor had been told it could be terminated for any reason on notice at any time. They might also say they relied on good faith on information from the client.

                  It will occurs to me however that if the client misled then there could be a claim in the tort of deceit. A lot of contractors charge more for contracts which are far away or short. They charge less for homeworking.

                  If that applies to OPs business they could claim for the fee difference. OP could say that if they knew it was only 3 months or whatever they would have charged 20% more. They would need some evidence that was so.

                  Deceit / fraud claims can and in my view should be brought by contractors. However there are strict rules and he would probably want a solicitor.

                  Comment


                    #49
                    Originally posted by Whumpie View Post
                    Sorry - crossed wires. My issue isn't with the contract or the termination - that's fine. It was the mis-sell of that contract before it was signed.
                    Sorry don't get it. So agent told you it was 6 months, contract you signed was for 6 months but they terminated early.

                    How on earth are you going to prove it was never going to be six months?
                    Rhyddid i lofnod psychocandy!!!!

                    Comment


                      #50
                      Originally posted by Whumpie View Post

                      What I'm hoping is that I can land another role quickly, in which case I can just write to the previous client and point out how legally dodgy their practice is so they can change their ways. But if - as is often the case around here - I have a long gap to my next contract, and if the specialist thinks there is a case, then I will take it to them.
                      Point out that their practice is dodgy? Are you serious?

                      Hmmm - I don't think they're going to change their ways to be honest with you. It'll cause a bit of a laugh mind.
                      Rhyddid i lofnod psychocandy!!!!

                      Comment

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