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fraudulent representation need not necessarily be made directly to the party who seeks to recover damages in respect of it, provided such party was intended to act upon it (2).

A misrepresentation must be carefully distinguished from a warranty. The latter is an ingreement contemporaneous with but collateral to the main purpose of a contract, by which, in effect, one party asserts a particular fact, and expressly or impliedly undertakes to be responsible in damages if it should turn out to be untrue. The remedy for a breach of warranty is therefore damages, and not r’scission of the contract. It is often difficult to determine whether a statement made by a contractor at or about the time of the contract, is a mere representation or a warranty. The question must be settled by examining the facts of each particular case (a).

Contracts uberrimæ fidei.There are certain classes of contracts to which this name is applied, the common characteristic of which is, that they may be avoided on account of non-disclosure of a material fact. In other words, there is a positive duty imposed on each party not only to refrain from active misrepresentation, but also to communicate to the other every fact relevant to the contract which would materially affect his judgment. Such cases are exceptions to the general rule, which is, that mere suppressio veri, or non-disclosure of facts, does not invalidate a contract, at all events unless there is such “industrious concealment,” as, in effect, to amount practically to fraudulent misrepresentation (1). Generally speaking, “ simple reticence does not amount to legal

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“fraud, however it may be viewed by moralists” (C). The chief classes of contracts uberrimce fidei are the following: (1) contracts of insurance in respect of life, fire, and maritime or other risks (el); (2) contracts to take shares in a company based upon a prospectus issued by the company, at all events if the suppression “ contains a “ suggestion of falsity,” or is in breach of the requirements of the Companies Act, 1900 (e) ; and (3) contracts for compositions with creditors ($). It is sometimes said, that ordinary contracts of guarantee are also within the rule ; but this does not seem in harmony with authority (9).

Some text book writers also place contracts for the sale of land in this class ; but this also appears not to be strictly accurate, though suppression may sometimes be a reason for resisting specific performance, on the ground (probably) of hardship (h).

(c) Duress.—When a party is induced to enter into a contract by actual or threatened personal violence to himself, his wife, or child, he is said to act under duress, and the contract is voidable at his option (i). Duress in respect of goods or other property is not sufficient to avoid a contract ; but where money is paid to release property wrongfully withheld, it may be recovered back (k). So also, a contract made by an agent of the party suffering the duress, in order to remove the duress from his principal, is voidable (1).

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(g) Davies v. London Provincial Insurance Co. (1878), 8 Ch. D. 469; Seaton v. Heath, supra.

(h) Fry, Specific Performance, 402, 713; Turner v. Green, [1895) Ch. 205.

(i) Co. Litt. 253 b; 2 Inst. 483 ; Scott v. Sebright (1886), 12 P. D.21; Cooper v. Crane, [1891] P. 369.

(k) Wakefield v. Newbon (1844), 6 Q. B. 276.

(I) Cumming v. Ince (1847), 11 Q. B. 112.

(D) Undue Influence.—When the parties to a contract or other transaction are in such a relationship or position to each other that by force of circumstances “ dominion may be exercised by one person over another," it is a general principle of law that there is a presumption of undue influence, and “the transaction cannot stand, unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been, in point of fact, fair, just, and reasonable" (m).

As between persons who are sui juris, of sound mind and competent understanding, and not in any fiduciary or dependent relationship to each other, it is, of course, almost impossible for a case of “ undue influence” to arise, unless it, in effect, amounts either to fraud or duress (n). But the presumption above mentioned arises in a number of cases in which one of the parties to a transaction is at some obvious and well-marked disadvantage, as compared with the other.

The chief instances are as follows: (1) contracts for the sale of reversionary interests, or other agreements made by expectant heirs upon the credit of their expectancy (o) ; (2) agreements by persons in favour of others to whom they stand in a fiduciary relation, such as parents with children, trustees with beneficiaries, solicitors with clients, guardians with wards, directors of a company with the company, and promoters of a company in the case of sales to the company (p); (3) agreements by persons at a disadvantage owing to their illiterateness or ignorance of business, and absence of independent advice or extreme necessity (D) ; (4) agreements by any person in favour of another, who, owing to some peculiar relationship, has special facilities for exercising dominion or influence, e.g., between medical men and their patients, or persons and their spiritual, religious, and other confidential advisers (r).

(m) SELBORNE, L.C., in Ayler. ford v. Morris (1873), L. R. 8 Ch. 489 ; COTTENHAM, L.C., in Dent v. Bennett (1838), 4 M. & Cr. 277.

(n) Barnes v. Richards (1902), 86 L. T. 231.

(o) Chesterfield v. Jannsen (1750), 1 Wh. & Tud. L. C. 289; Brench.

ley v. Higgins (1901), 83 L. T. 751.

(p) Barron v. Willis, [1900]2Ch. 121 ; De Witte v. Addison (1899), 80 L. T. 207 ; Fox V. Mackreth (1788), 2 Wh. & Tud. L. C. 709 ; Wright v. Carter, [1903] 51 W. R. 196.

Sub-section (9).Discharge of Contracts. The chief modes in which a contract may be discharged are the following. (1) By express agreement or release ; (2) by alteration of a written agreement ; (3) by performance ; (4) by accord and satisfaction or release ; (5) by merger ; (6) by bankruptcy ; (7) by breach of contract by the other party ; (8) to a certain extent by the statutes of limitation ; and (9) by impossibility of performance. We will consider these briefly in the order mentioned.

(1) Express agreement for rescission.—If both parties mutually agree to put an end to a contract which has not yet been performed on either side, the contract is effectually discharged. If, however, it has been performed by one party, the other can only be discharged if he is properly released either under seal or for some express consideration, because otherwise the promise to release would have no consideration to support it (s). Non-performance for a considerable lapse of time may raise an implication of an agreement to abandon the contract (t). Sometimes the original contract contains an express provision that in certain events, or upon certain conditions, the contract shall cease to be operative. In such a case it ipso facto determines upon the happening of the event, or the fulfilment of the condition. A condition of this kind may be

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either positive or negative, and either precedent or sulsequent (u). Familiar instances of conditions subsequent are to be found in the case of bonds, and in tenancy or other agreements terminable by notice.

Finally, a contract may by agreement be discharged by means of a substituted contract, which expressly or by implication supersedes it. This is sometimes called noration, and may arise either by a new agreement between the same parties varying the old terms, or by an agreement by which a new party is substituted for an

original one. . With regard to a release, the term is more correctly applied to an agreement by one party, not himself in default, to waive performance by the other party, after there has already been an actionable breach by the latter: As already stated, such a release, to be effective, must either be under seal or for express consideration.

(2) Alteration of written agreement.-An intentional alteration of a contract in writing or under seal, in a material respect, by one party without the consent of the other, as a general rule prevents the former from enforcing the contract at all against the latter. The alteration must be material (12), and must not be merely accidental, or by mistake. As regards alterations in bills of exchange and promissory notes, special provisions are made by the Bills of Exchange Act, 1882, s. 64.

(3) Performance. — A contract must, of course, be performed strictly in accordance with its terms, but if so performed, it is obvious that it is discharged, so far at least as concerns the party who has performed it. Performance must be completed at or within the time specified, or, if none be specified, then within a reasonable time (y).

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