The P-39 Airacobra was an aerial American Wunderkinde. It was fast, manoeuvrable, and carried the kind of cannon found in a tank. Or at least it was, according to its manufacturer, Bell, when it showed off the aircraft to the British Purchasing Commission during the early years of World War Two.
What Bell didn’t mention was the statistics provided about Airacobra’s performance were based on the prototype. The Airacobra prototype carried none of the armament the production models were intended to carry. The prototype also had a supercharger, which would not be fitted to the planes rolling off the assembly line. The RAF ended up using the plane for one mission while the Australians didn’t even bother with that token effort.
While there’s a lesson here for potential buyers, there’s also one for anyone looking to sell an item. You need to make sure you’re offering an accurate description of the item, lest you be accused of misrepresentation.
A misrepresentation is where one party makes an untrue statement which leads a second party to enter a contract with the first party, where the second party incurs a loss. This doesn’t generally include anything that could be called sales talk or held to be just an opinion. However, anything stated recklessly might still be a negligent misstatement if one party owes a duty of care to another.
Misrepresentation is generally divided into three categories, with the remedies becoming more extensive the more serious the misrepresentation. The first category is innocent misrepresentation, where the misrepresentation was made without any fault by the person or party who made it and they can show a reasonable belief that it was true. The remedy here is merely that the contract between the parties is rescinded.
Negligent misrepresentation occurs when the party making the representation carelessly or without reasonable grounds for believing it to be true. Not only will the other party be able to rescind the contract, but if they can show they relied on the representation and entered into the contract only to incur a loss, they will be able to claim damages.
Finally, there’s fraudulent misrepresentation, which comes under the tort of deceit. This is where the party at fault knowingly makes a false representation or is reckless as to whether it’s true. This representation is relied on by the other party, who relies on it and then suffers a loss due to it being a load of codswallop. Again, the injured party is going to be looking for damages along with consigning the contract to the dustbin.
Even keeping quiet can potentially bring pitfalls. Silence may not be considered a misrepresentation as there is no general duty to disclose facts to the other party that might affect their decision to enter into a contract. If you’ve made a representation and circumstances then change to the point where the representation no longer reflects reality, then failing to tell the other party about the new picture can be construed as a misrepresentation by conduct.
So, be careful of what you say and certainly what you put in print. If you’re ever unsure, give us a call.
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