Misrepresentation, 'Misrepresentation' means and includes--
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement. [(English) Contract Act, 1872 (9 of 1872), s. 18)]
Misrepresentation, i.e., suggestio falsi, if a matter of substance essentially material to the subject, whether by acts or bywords, by man'uvres, or by positive assertions or material concealment (suppressio veri) whereby a person is misled and damnified.
In equity it is immaterial whether the misrepresent or knew the matter to be false, or asserted it, without knowing if it were true or false; for the affirmance of that which is not known to be true is as unjustifiable as the assertion of that which is known to be false, since it is equally a means of deception. But equity would not relieve, if the misrepresentation were of a trifling or immaterial thing, or if the other party did not trust to it, or was not misled by it, or if it were vague and inconclusive in its own nature, or if it were upon a matter of opinion or fact equally open to the inquiries of both parties, and in regard to which neither could be presumed to have confided in the other, for vigilantibus non dormientibus 'quitas subvenit. Equity cannot indemnify a person from the consequence of indolence and folly, or of careless indifference and neglect of easily accessible means of information. At Common Law, see more fully under the title DECEIT.
If the representation amounts to a warranty (q.v.), its untruth is actionable because the person making it has entered into a contractor warranty and not on the ground merely of mis-statement. Such representations may be collateral or not part of the principal contract and upon letting premises may not be required to be put into writing under the (English) L.P. Act, 1925, s. 40, reproducing s. 4 of the Statute of Frauds, see De Lassale v. Guilford, (1901) 2 KB 215. See also Smith's L.C., notes to Chandelor v. Lopus.
Innocent misrepresentation is where a person makes a representation which he reasonably and honestly believes to be true, but which is in fact false. Innocent misrepresentation, if it induced a contract, provides a defence to an action on the ground of breach of contract, and will enable the deceived party to get the contract rescinded by the Court it the parties can be put back again in their original position; but see Jones & Co. v. Waring & Gillow Ltd., 1926 AC 670. See Leake on Contracts.
Misrepresentation of Solvency, etc. By s. 6 of the (English) Statute of Frauds Amendment Act, 1828 (9 Geo. 4, c. 14) (Lord Tenterden's act), no action lies in respect of any representation of the credit, trade, dealings, etc., of another, to obtain credit for that other, unless it be in writing, signed by the party to be charged therewith, See Hirst v. West Riding Banking Co., (1901) 2 KB 560.
As to misrepresentation in a prospectus by non-disclosure and the Larceny Act, 1861, s. 84, see R. v. Bishirgian, 52 TLR 361. See REPRESENTATION.