Breach of Contract
Jane has decided to buy a dinner service. A neighbour tells her that asister-in-law, Carolyn, is planning to sell her valuable Coalportservice. Jane telephones Carolyn who tells her that the Coalport is afull service, in immaculate condition and completely original. Janeinquires whether the Coalport is in ‘athlone blue’, knowing that thisis particularly valuable. Carolyn replies, “It must be, it’s theproper Coalport blue colour”. Jane further inquires whetherreplacement Coalport can still be purchased in the event of breakages.Carolyn tells her, “Well I broke a dinner plate a year or two ago andhad no trouble buying another one”. Jane agrees to send Carolyn acheque in the sum of ?350, on clearance of which Carolyn will dispatchthe Coalport.
Jane receives the service a month later. She is disappointed and angryto discover that:
the Coalport is deficient in two items, namely one tureen and onesmall plate’
there are faint cracks on the underside of the gravy boat;
the Coalport is blue, but not ‘athlone blue’; and
this particular dinner service is no longer available, Coalport havingrecently been taken over by Wedgwood.
Jane requires advice on misrepresentation and also a possible actionfor damages in breach of contract.
A misrepresentation is a false statement of fact, made contractuallywhich is intended to induce the contract and which has that effect.So, in order to establish if any of Carolyn’s statements willconstitute a misrepresentation, it must be examined if they constitutestatements of fact. First of all, with regard to the statementconcernin…
…statement and conclusion of contract is important (Routledge v McKay(1954)). Here, there is no gap at all implying it could be a term.Secondly, the expenses of the parties are important. Obviously, theseller is expected to know his own goods (Harling v Eddy (1951)), butif the buyer has expert knowledge, they may be expected to check thefacts (Oscar Chess v Williams (1957)). Additionally, it would dependif the factor was central to the contract (Bannerman v White (1861);Schawel v Reade (1913)). However, Carolyn will argue the statementswere never put into writing. If it is decided the statements areterms, Jane can seek damages for breach of contract.
However, considering the facts and favourable measures of damagesavailable for misrepresentation, it is submitted that Jane should takeher action in that area.