ar Mr Yang:
I was confused with the case "Goldsmith v. Rodger (1962)2 Lloyd's Rep.249".(quoted from your book of the rules of international game--English Contract Law p.163 )it's about buyer's misrepresantation which the seller was granted to rescind the contract on account of bueyer's misstatment that the boat was rotten at the bottom.
I feel unacceptable to the conclusion,and hereunder are my arguments:
Firstly, the misstatement of buyer not constitute a misrepresentation.there are some elements to constitute a misrepresentation.these elements are :1, a misstatement of fact not matter intended or not; 2, a party must reasonably rely on the misstatement according to the specific circumastances; 3, a party was influenced by the misstatement (<Chitty on contracts>,6-019);
but, in this case, it seems to me that the seller is better known to his boat, although the buyer made the misstatement which is not true.so, it's hard to believe that the seller was influenced by the buyer's misstatement.
Secondly, the conclusion is unfair to the buyer. The seller found the misrepresentation after the contract was made.if the contract was rescinded due to the misrepresentation, it will undermine the certainty of contract.as you mentioned in the book, you questioned the judgement of the precedent "The Lucy",and we can see the conflict between the binding force of contract and misrepresentation.the seller can not use Misrepresentation as an excuse to shift his business risk.
To sum up, the coclusion was not convinced according to the rule of Misrepresentation.
Looking forward to your instruction.
Thanks
Louis Peng from Dalian |
发表于 2008-7-31 10:22
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发表于 2008-8-4 20:44
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