Misrep Remedies
Sale of Goods and Supply of Services Act 1980
PART V
Misrepresentation
“Contract”.
43.—In this Part “contract” means a contract of sale of goods, a hire-purchase agreement, an agreement for the letting of goods to which section 38 applies or a contract for the supply of a service.
Removal of certain bars to rescission for innocent misrepresentation.
44.—Where a person has entered into a contract after a misrepresentation has been made to him, and
(a) the misrepresentation has become a term of the contract, or
(b) the contract has been performed,
or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Part notwithstanding the matters mentioned in paragraphs (a) and (b).
Damages for misrepresentation.
45.—(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 that the facts represented were true.
(2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.
(3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (1), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (1).
Avoidance of certain provisions excluding liability for misrepresentation.
46.—(1) If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict—
(a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or
(b) any remedy available to another party to the contract by reason of such a misrepresentation,
that provision shall not be enforceable unless it is shown that it is fair and reasonable.
(2) Subsection (1) shall not affect any right to refer a difference to arbitration.