Question 1 (b)
Fraud and misrepresentation distinguished
6 marks
- Time to write
- About 12 minutes
- Topic
- Free consent
- Notes
- Crux notes
Question
Question 1 (b) · 6 marksAs per the Indian Contract Act, of 1872, distinguish fraud from misrepresentation.
Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.
Before you write
Read off the question and its marks
Read from the question
- distinguishSet the differences out in a table, basis by basis, not as two separate essays.
Write it in this order
- Read; underline the asks; jot your points 1 min
- 1 Fraud defined 1½ marks 2 min
- 2 Misrepresentation defined 1½ marks 2 min
- 3 Differences 3 marks 5 min
- Check: every ask answered, key terms underlined 2 min
Short on time? Trim steps 1–3 evenly rather than skip one: each is capped at its own marks.
Try it first. About 12 minutes for 6 marks. Write it out, then open the solution.
Solution
Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.
Fraud (section 17). Fraud covers certain acts done, with the intention of deceiving the other party or of inducing him to contract, by a party to the contract, with his connivance, or by his agent. The acts are: asserting as a fact something untrue that the person does not himself believe; actively concealing a fact that he knows or believes; making a promise with no intention of keeping it; any other act fitted to deceive; and any act or omission that the law specially declares to be fraudulent.
1The dealer grins through the lie—he knows the engine is reconditioned junk.
FraudAsserting as a fact something untrue that the person does not himself believe
2The kindly uncle repeats what the mechanic told him, believing every word of it.
MisrepresentationThe positive assertion, in a manner not warranted by the maker's information, of what is not true though he believes it true
3True or honestly false, the choice is hers: keep the scooter or hand back the keys.
VoidableThe contract is voidable at the choice of the party whose consent was obtained in that way
Misrepresentation (section 18). Misrepresentation means and includes the positive assertion, in a manner not warranted by the maker's information, of what is not true though he believes it true; a breach of duty without intent to deceive which gains an advantage to the person committing it by misleading another to that other's prejudice; and causing, however innocently, a party to make a mistake as to the substance of the thing that is the subject of the agreement.
| Basis | Fraud | Misrepresentation |
|---|---|---|
| Intention | Made to deceive the other party | No intention to deceive |
| Knowledge of truth | The maker knows the statement to be false, or does not believe it to be true | The maker believes the statement to be true, although it is not |
| Remedies | The injured party may rescind the contract and also claim damages | The injured party may rescind or sue for restitution, but cannot claim damages |
| Means of discovering the truth | The defrauding party cannot plead that the injured party could have discovered the truth (except where the fraud is by silence) | The party can plead that the injured party had the means of discovering the truth with ordinary diligence |
In both cases the contract is voidable at the choice of the party whose consent was obtained in that way (s. 19).
Where the 6 marks sit
| # | Component | Marks |
|---|---|---|
| 1 | Fraud defined | 1.5 |
| 2 | Misrepresentation defined | 1.5 |
| 3 | Differences | 3 |
| Total | 6 |
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