The Gazette 1982

GAZETTE

APRIL 1982

1967 Act (section 45 (1) of the 1980 Act). Accordingly the plaintiff was entitled to recover, against the defen- dant, damages for the loss of his bargain. (Note, Treitel disputes the right to recover contractual damages under a provision based on tortious liability and there is con- fusion as to the actual nature of the damages awarded in Watts v. Spence - see Treitel, The Law of Contract 5th ed. pp. 267 et seq.). In any event, such a use of Part V of the 1980 Act is not open to the Irish courts, limited as it is to contracts for the sale of goods, hire purchase agreements and the supply of services, see section 43. It remains to be seen whether limiting Part V to such contracts is the correct approach to adopt. It has been seen that the retention of the Rule in Wilde v. Gibson is justified by the need for finality in land sales. Problems with the doctrine of merger have also been avoided. However it is equally clear that, by excluding contracts for land, certain house purchasers may be left remediless save for the contractual right to damages under the General Conditions of Sale. Moreover a means of reducing the impact of the Rule in Bain v. Fothergill has been lost. On balance two classifications governed by different statutory or common law rules can only add to the confusion that surrounds the law of misrepresentation. Summation: There are a number of defects apparent in Part V. Firstly, problems arise from the failure to legislate in positive rather than negative terms, for example, the right to damages for innocent misrepresentation arises only indirectly. Secondly, we have seen the difficulties involved in 'lifting' English provisions, for example in relation to sections 44 (b), 45 (2) and 46. Thirdly, and most importantly, the provisions show the difficulty of trying to legislate for misrepresentation solely in rela- tion to certain categories of contracts. What was re- quired was a separate short Act dealing with the entire area of misrepresentations. Such a uniform approach coupled with knowledge of how the English provisions have worked since 1967 would have been a very valuable addition to the law of contract. As it stands, Part V has little to recommend it. Footnotes: 1. See also Misrepresentation Act (N.I.) 1967 - discussed in J.C.W. Wylie, Irish Conveyancing Law, s.6.70 et seq. 2. LI948] 1 H of L cas. 605. 3. [l905] 1 Ch. 326. 4. [1914] I.R. 378. 5. See Pennsylvania Shipping Co. v. Cie Nalionale de Navigation 1936 155 L.T. 294 - see Wylie 6.68. 6. Wylie 6.70. 7. Gosling v. Anderson [1972]. C.L.Y. 492, Jarvis v. Swan Tours [197311 Q.B. 233, Lord Denning at p. 237, Davis d Co. (Hines) v. Afa Minerva (EMI) Ltd. [1974[ 2 Lloyds Rep. 27. 8. Doyle v. Olby (Ironmongers) [1969] 2 W.L.R. 673, Watts v. Spence [19751 2 W.L.R. 1039, Fd H Entertainments v. Leisure Enterprises Ltd. L1976] 120 Sol. Jo. 331. Howard Marine d Dredging Co. Ltd. v. Ogden d Sons Ltd. [1978] 2 W.L.R. 515. 9. Law Reform Committee, 10th Report, Innocent Misrepresenta- tion (Cmnd. 1782) para. 2.

10. N.9 above para. 6-8. 11. See Wylie 19.02. 12. See Wylie 6.71. 13. See Actionable Misrepresentation (Turner ed.) (3rd ed.) 1974 (Butterworth) p. 255. 14. See Turner n.13, Chapter XII, also Wylie 6.71. 15. Hedley Byrne d Co. Ltd. v. Heller d Partners Ltd. Il964] A.C. 465. 16. The Irish Courts have applied Hedley Byrne restrictively - see Bank of Ireland v. Smithll966[ I.R. 646 as applied in Stafford v. Keane Mahony Smith, 21 March 1980, H. Ct. unreported. 17. See Wylie 6.71. 18. As in Carbin v. Somerviile L1933] I.R. 276 although that was a case on fraudulent misrepresentation. 19. Incorporated Law Society of Ireland, General Conditions of Sale, condition 21 (2). 20. Sale of Goods and Supply of Services Act 1980, s.4. 21. Statute of Limitations 1957, s.ll (1) (a). This presupposes that the statutory period of limitation of actions for non-fraudulent misrepresentation is the same as for actions for breach of con- tract. 22. S. 3 of the N.I. Act and the U.K. Act were both replaced by s. 8 of the Unfair Contract Terms Act 1977. Note this new provision refers to contracts and not agreements. 23. 9th ed. at p. 278. 24. 11974] 3 All E.R. 511. Other English cases include Cremdean Properties v. Nash [1977] 241 E.G. 837, Howard Marine and Dredging Co. v. Ogden and Sons [19781 2 W.L.R. 515. 25. 9th ed. at p. 278. 26. See Wylie 6.73. 27. (1874) L.R. 7 H.L. 158. 28. See Wylie 12.78 et seq. See also O'Driscoll, [l975] 10 Ir. Jur. 203, where Bain v. Fothergill is discussed.

F.L.A.C.

F . L . A . C . h a ve o p e n ed a C ommu n i ty Ri gh ts Ac t i on Ce n t r e, in J o h n ' s L a ne We s t, T h om a s S t ., Dub l in 8. T h e in- itial f u n c t i on of t he c en t re is t o p r o- vide adv i ce a nd a s s i s t ance in Social We l f a r e c l a ims a nd a pp e a l s, in- c l ud i ng r e p r e s e n t a t i on b e f o r e a pp e al t r i bun a l s, a nd a l so t o assitst with Co r p o r a t i on Ho u s i ng p r o b l ems. T h e Ce n t re is o p en five a f t e r n o o ns a nd t wo even i ngs a we e k. If you a re i n t e r es t ed in b e c omi ng i nvo l ved in t he p r o j e ct p l ease t e l e p h o ne 726464.

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