FRAUDULENT MISREPRESENTATION

FRAUDULENT MISREPRESENTATION Author: Nasser Hamid Binding: Softcover, 500 pages Publication Price: MYR 200.00 CONTENTS Chapter 1 STATEMENTS, REPRESENTATIONS AND FRAUD Representation Misrepresentation Fraudulent Misrepresentation STATEMENTS Statements Legal Duty Statements and Representations Duty of Care Class of Persons who owe a Duty of Care in relation to Statements Statement as to Actual Contents of Document Statement of Fact Statement Truth with Qualifications Effect of Statements and Contracts Classification and Effect Consequences for a Statement made by a Party to a Contract Contractual and Pre Contractual Statements DUTY OF DISCLOSURE Non Disclosure Duty of Disclosure Duty of Disclosure Nature of Relationship between Parties Obligation to Speak at Outset Duty or Obligation to Speak Duty of Disclosure Direct Inquiry from the Plaintiff Failure to Answer Duty of Disclosure Obligation to Correct Statements Discovered to be False Types of Non Disclosure Non Disclosure & Misrepresentation Actionable Misrepresentations & Non Disclosures Principle of Concurrency Disclosure Identity of Purchaser Non Disclosure Patent Defects Silence Whether Misrepresentation Effect of Silence or Inactivity when Duty to Speak or Act Circumstances required for Silence to be Actionable Misrepresentation When Silence constitutes Falsity Falsity by Omission, Silence or Inaction General Principles Active Concealment

REPRESENTATIONS Representation Meaning of Representation Nature of Representations and Facts Fact Meaning of Representation Whether a Warranty Fact not Opinion Several Statements and Representations Express Representations False Representation True Statement False Representation Tort of Deceit Representation Requirement of Knowledge on the part of the Maker Actionable Representation Actionable Representation v Future Promise Implied Representations Actionable Negligence Determining whether Representation was Fraudulent Representation, Warranty or Statement Liability for Hire Purchase Act 1967 (Revised 1978) (Act 212) Pre Contractual Statements Representations Pre Contractual Statements Representations Duty of Care Pre Contractual Statements Whether a Statement is Representation or a Term Representations that Induce Inducement Whether Representation Renders Contract Voidable Representations Continuing Effect Exclusion Clause & Representations Duty to Correct Erroneous Representations FRAUD Fraud Meaning of Fraud Meaning of Section 17 of the Contracts Act 1950 (Revised 1974) (Act 136) Definition of Fraud Contracts Act v National Land Code Actual Fraud Meaning of Tort of Deceit Common Law Fraud Meaning of Fraud or the Equivalent of Fraud Meaning of Equitable or Constructive Fraud False Representations and Fraud Fraud at Common Law Intent to Defraud Intent to Defraud Creditors Meaning of Section 73B of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) Intention to Deceive Meaning of Fraudulent Conduct Fraud Intention to Deceive Equitable Fraud and Common Law Fraud Compared Requirements of Proving Equitable Fraud and Common Law Fraud Proof of Actual Intention to Deceive Chapter 2 MISREPRESENTATION

Misrepresentation Meaning of Misrepresentation Meaning of Canadian Securities Act, R.S.O. 1990 Misrepresentation Meaning of Section 18 of the Contracts Act 1950 Interpretation of Section 18 of the Contracts Act 1950 Nature of Misrepresentation Material Fact Meaning of Canadian Securities Act, R.S.O. 1990 Materiality of Misrepresentation Materiality of Misrepresentation Documents Cautionary Language Operative Misrepresentation Misrepresentation State of Mind of Representor Representee Action in Deceit Reliance on Misrepresentation Misdescription v Misrepresentation Statement of Intention Whether Misrepresentation Opinion Whether Misrepresentation Opinion in Prospectus Whether Misrepresentation Puffing Whether Misrepresentation Determination Type of Misrepresentation Determining whether Representation was Fraudulent Falsity Distinction between Innocent and Fraudulent Misrepresentations What Constitutes Falsity? Rules for the Determination of the Falsity or Truth of any Misrepresentation Standard for Determining Falsity Honest Belief in Its Truth Effect of Negligence or Incompetence in Forming Belief INNOCENT MISREPRESENTATION Misrepresentation is Innocent if made with Honest Belief in its Truth Innocent Misrepresentation Malaysian Position Defence of Innocent Misrepresentation Essence of Innocent Misrepresentation Remedy Innocent misrepresentation Rescission of Contract Restitutio in Integrum Innocent Misrepresentation Exemption Innocent Misrepresentation Limits of Right of Rescission Acceptance of Goods Sold NEGLIGENT MISREPRESENTATION Negligent Misrepresentations Negligent Misrepresentation v Negligent Misstatement Negligent Misrepresentation Proof of Negligent Misrepresentation in Pre contractual and Contractual Statements Negligent Misrepresentations and Defence of Contributory Negligence Negligent Misrepresentation Remedy of Damages Chapter 3 FRAUDULENT MISREPRESENTATION

Tort of Deceit Fraudulent Misrepresentation and the Tort of Deceit Tort of Fraudulent Misrepresentation or Deceit Elements of the Tort of Deceit Deceit Proof of Fraud Nature of Fraudulent Misrepresentation Dishonesty and Fraudulent Misrepresentation Fraudulent Recklessness v Negligence False Statement Whether Fraudulent Misrepresentation Fraudulent Misrepresentation Proof of Fraud Intention of Representor Fraudulent Misrepresentation Representation must be Acted Upon FRAUDULENT MISREPRESENTATION AND CONTRACTS Contract Obtained Fraudulently Fraudulent Misrepresentation and Contract Absence of Agreement v Validity of Agreement Contract Consent Consent Caused by Fraud Effect of Section 19 of the Contracts Act 1950 Exception to Section 19 of the Contracts Act 1950 Evidence of Misrepresentation Validity of Contract v Interpretation of the Terms of the Contract Settlement Misrepresentation Effect of Contracts and Good Faith Contractual Terms Implied Terms Contractual Terms Implied Terms Implication of Terms into a Contract Contractual Terms and Fraud Contractual Terms Liability for Breach Intention of Parties Breach of Essential Term of a Contract & Rescission Mistake Induced by Misrepresentation Mistakes Remedy of Rescission Execution of Document by Wife Procured by Misrepresentation of Husband Liability Entire Agreement Clauses & Misrepresentation Misrepresentation Reliance on Exemption Clause Non Est Factum and Fraud Chapter 4 INDUCEMENT and RELIANCE INDUCEMENT Operative Misrepresentation Inducement Operative Inducement Inducement State of Mind of Representee Inducement Principles of Law Inducement Inference EVIDENCE OF INDUCEMENT

Inducement Proof of Inducement Causal Relationship Evidence of Actual Inducement Establishing Inducement by Representations Difficulty Proving Inducement Intention to Induce Representor s Frame of Mind Inducement Shifting of Burden of Proof Inducement Fraudulent Misrepresentation Inducement Falsity of the Statements Exercise of Reasonable Diligence Rebutting Reliance Onus of Representor Estoppel Onus of Representee Material Inducement Need not be Sole Inducement Contractual Remedies Act 1979 (New Zealand) Inducement Materiality Tendency to Induce Inducement Election or Affirmation of Contract Inducement Remedies Damages Entitlement to Damages Inducement Measure of Damages Inducement Other Inducing Causes RELIANCE Fraudulent Misrepresentation Reliance Negligent Misrepresentation Reliance Inference Reliance Knowledge of Untruth of Representations Reliance Entitlement of the Representee to Rely on Representation Proving Reliance Burden of Proof Reliance Tender Documents Chapter 5 EVIDENCE Introduction Evidence of Fraud or Fraudulent Misrepresentation Burden of Proving Fraud Proof of Fraud Question of Fact Proof of Fraud Absence of Honest Belief in Truth of Statements STANDARD OF PROOF Fraud Standard of Proof Proof on the Balance of Probabilities Degree of Probability Fraud Standard of Proof Distinction between Criminal Fraud and Civil Fraud Proof Beyond Reasonable Doubt Proof Beyond Reasonable Doubt Onerous Task Surrounding Circumstances Fraud Standard of Proof Singapore Fraudulent Misrepresentation Standard of Proof

Fraudulent Misrepresentation Standard of Proof Beyond Reasonable Doubt Maximum Evaluation of Evidence Fraudulent Misrepresentation Section 18(a) and 18(c) of the Contracts Act 1950 Standard of Proof Fraudulent Misrepresentation Burden of Proof Shifting of Burden Allegations of Fraudulent Misrepresentation Fact Situations PLEADINGS General Allegation of Fraud Fraud & Pleadings Rules of Court Misrepresentation Bare allegation Claim founded under Misrepresentation Act (Cap 390) Pleading Particulars of Fraudulent Intent Statement of Claim Fraudulent Misrepresentation APPEAL Acquittal of Fraud Appeal Appeal Review of Evidence ESTOPPEL Doctrine of Estoppel Estoppel by Convention Estoppel by Representation Doctrine of Estoppel by Representation Fraudulent Misrepresentations Estoppel by Conduct Elements of the Doctrine of Estoppel CHAPTER 6 APPLICATION OF PRINCIPLES TO CASES AGENCY Introduction Agent Implied Authority Liability of Agent Recovery of Monies by Agent Agent and Misrepresentation Effect of Misrepresentation by Agent Contracts Act 1950 Identity of Contracting Party Whether Material Element Misrepresentation Validity of Contract Person Failure to disclose Identity of Principal Validity of Contract Doctrine of the Undisclosed Principal Non Disclosure of the Undisclosed Principal Undisclosed Principal Contracting with Agent Liability Liability of Principal for his Agent for Fraudulent Misrepresentation

Misrepresentation of Agent Liability of Principal Liability of Principal for Fraud of Agent Action for Breach of Warranty Estoppel by Representation Holding out as Agent Agent Misrepresentation Exclusion of Liability Section 3 of the Misrepresentation Act 1967 (Singapore) Vicarious Liability of Principal for the Wrongful or Fraudulent Acts of his Agent Vicarious Liability Negligent Misrepresentation Section 2 of the Misrepresentation Act 1967 Liability of Director for Fraudulent Acts of Company BILL OF LADING Bill of Lading Reliance on Representation Interpretation of Bills of Lading Defence of Ex Turpi Causa Non Oritur Action INSURANCE Insurance Misrepresentation Concealment of Material Fact Insurance Policies and Misrepresentation Representations Subsequent Underwriters Representations and Warranties in Fire Policies Insurance and Fraudulent Claims Section 17 of the Marine Insurance Act 1906 Agent of Insurance Company completing Proposal Form Liability of Insurance Company Proposal Form Misstatement Effect of LAND Fraud and Land Misrepresentation for Contracts and Misrepresentation under the National Land Code 1965 Fraud and Land Transactions Torrens Jurisdictions Actual Fraud Meaning of Fraud Land Transactions Fraud Misrepresentation and Indefeasibility Land Transfer of Land Representations Effect of Deceit Misrepresentation under Section 340 of the National Land Code Illegality Distinct from Fraud Land Vitiating Title Fraud Defect in Property Duty of Disclosure Non Disclosure Whether Misrepresentation Fraud and Indefeasibility PERFORMANCE BONDS Performance Bonds Performance Bonds Fraud or Unconscionable Conduct On Demand Bond & Fraud TRADEMARKS

Fraudulent Misrepresentation and Infringement of Trade Mark Passing Off Passing Off & Misrepresentation Chapter 7 REMEDIES Action for Misrepresentation v Action for Deceit Effect of Misrepresentation Remedies for Misrepresentation & Misrepresentation Act 1967 UK Types of Misrepresentations Effect of Misrepresentation Remedies Available Innocent Misrepresentation Remedies Innocent Misrepresentation Sale of Goods Rescission Innocent Misrepresentation Distinction between Indemnity and Damages RESCISSION The Object of Rescission Misrepresentation and Rescission Fraudulent Misrepresentation Rescission in Toto Rescission of Contract Rights and Obligations of Parties Consequences of Rescission of Voidable Contract Restitutio in Integrum Impossibility Fraudulent Misrepresentation Refund of Deposit Rescission Limitations and Restrictions Compensation in Damages but no Rescission Representee Right to Rescind Rescission Misrepresentation Affirmation Rescinding a Contract and Varying the Terms of the Contract Action for Rescission Equitable Defences Affirmation of Contract Rectification of Contract Rectification Principles Rectification after Conveyance DAMAGES Tort of Deceit and Damages Damages Meaning of Object of Damages Damages for Fraud Damages for Fraudulent Misrepresentation Principles Applicable ASSESSMENT OF DAMAGES Assessment of Damages Breach of Mercantile Contract Assessment of Damages Applicable Principles

Fraudulent Misrepresentation Assessment of Damages Fraud or Deceit Principles Applicable in Assessing Loss Rationale for Differing Considerations Principles in Awarding Damages for the Tort of Deceit Fraudulent Misrepresentation Assessment of Damages Restitution Assessment of Damages in an Action for Breach of Contract v Fraud Loss Suffered as a Consequence of Misrepresentation Evidence of Loss Proof of Damage Assessment of Damages for Fraudulent Misrepresentation Bill of Lading Measure of Damages Fraudulent Misrepresentation Fraudulent Transfer of Land Assessment of Damages Exemplary Damages Fraudulent Misrepresentation Assessment of Damages Contract Sale and Purchase SPECIFIC PERFORMANCE Arbitration