Shahida feels that the contract between her and Benjamin

Shahida the
plaintiff a fashion designer wanted to beautify her new shop and went to
Benjamin Looking local art gallery to enquire and purchase an artwork to make
her shop attractive to the customers. Shahida explained to the Reagan the
salesperson in this art gallery that she wanted any painting artwork by the
local artists of the nineteenth century Hilda des Ste Croix. This local artist
was well known, and many people liked her paintings this is the reason as to
why Shahida wanted to have one of her paintings in her shop to add value to the
beauty of her shop. The issue in this case now is that Reagan the salesman
showed Shahida another painting done by another painter but an apprentice of
Hilda des Ste Croix. Thus, the artwork painting was not for Hilda des Ste Croix.
Reagan explained to his client that he the painting was probably that of Hilda
des Ste Croix because it had her label. Unfortunately, Benjamin had labeled
wrongly this picture painting, it was not for Hilda des Ste Croix but that her
apprentice. Shahida paid the £20,000 an amount that is charged for the painting
works for this famous artist; however, since in an actual sense the painting
was not that done by Hilda des Ste Croix, it was supposed to be sold at a price
much lower than what shahida paid. Therefore, shahida feels that the contract
between her and Benjamin Looking glass art gallery was breached since the item
that she was sold was a misrepresentation.

Misrepresentation
is a common law embedded in the law of contract of the England and other
Commonwealth countries.1
Misrepresentation in the definition is giving false information or statement
one party in the process of signing a contract which then misleads the other
party to sign a contract.2 Misrepresentation
can only take effect when a statement is proven to be untrue. According to the
law of contract, if a contract features a misrepresentation that made one party
enter into a contract then, such as contract can be either cancelled when it
has not yet been discharged fully or the plaintiff can claim damages when the
time of the contract has elapsed.3

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Some of the
landmark cases that were decided by the court based on misrepresentation in
contract are; Bisset v Wilkinson 1927
AC 1774
where the court upheld that in case there was no fraud, the plaintiff had no
right to rescind the contract on the claim that the defendant gave him a false
statement that the plot he was buying would accommodate 2,000 sheep but after
buying the plot, it could not accommodate and sustain this number of sheep. Esso Petroleum v Mardon 1976 QB 8015
was another landmark case where the court found that the defendant was guilty
of misleading the plaintiff. Esso the defendant misled Mardon the plaintiff
that the throughput of petroleum would reach 200,000 gallons of petrol in the
third year of its operation but when that time came, Mardon had not reached
this capacity since the facility was small as estimated by the defendant thus,
the defendant misrepresented the information to induce the other party to sign
a contract.

There various
accounts which Shahida could base her case against Benjamin looking glass art
gallery. First, she can base her case on false misrepresentation where she
would argue that the defendant gave her false information that misled her to
believe that the item she was buying was that of the artists she wanted. She
can argue in court by explaining that she had a trust and confidence with the
defendant that he will sell to her a genuine item because of his experience.6
She can emphasize that she thought the contract was in good faith but the
defendant ended up disappointing her by giving her a fake item in addition to
overcharging her. Museprime Properties v
Adhill Properties 1990 36 EG 1147 was
a similar case where the plaintiff filed a law sued against the defendant for
misrepresentation of the information during the contract signing. The defendant
was held liable for misrepresenting the information when entering into the
contract and this led to inducement of the plaintiff in signing the contract.
The court rescinded the contract as requested by the plaintiff.

Another premise on
which the plaintiff can stem her case is that she can argue in the court that
the defendant failed to take a legal duty of care as expected and thus this led
to her suffering loss of being overcharged on an item that is pretty
substandard. In the law of contract, all the parties to the contract are
required to take a legal duty of care in that they should play their part and
responsibilities very well so that the other party cannot suffer any harm.8
However, in this case, Benjamin art gallery carelessly labeled an item wrongly
which led to overcharging the client consequently suffering a loss. The
plaintiff can emphasize in court the fact that the defendant had a legal duty
of care to ensure that the item she was being sold was exactly the one that she
ordered. Therefore, the plaintiff failed his legal duty of care he is supposed
to the extent to the clients. Hedley Byrne
v Heller 1964 AC 4659
case one of the historical cases where the court emphasizes that someone acting
as an agent to the principal should exercise a special duty of care to other
parties the way the principal could do it. Thus, Reagan being an agent of
Benjamin had a legal duty of care to ensure that the clients coming are served
well without fraudulent.

Another premise on
which the plaintiff can argue this case is that is that the term of the
contract was express in that the defendant had labeled the item is written
meaning he was sure of what he was doing. The painting artwork was stocked in
the art gallery and the defendant always sees it but he could not change the
labeled. The plaintiff can try to convince the court that the defendant labeled
this item deliberately to defraud the customers owing to the fact that he was
an experienced artwork seller, he could easily know that the said painting
artwork was wrongful labeled. Therefore, the defendant was negligent and should
pay for the damages. Were it that it was an implied term were their terms are
not written then it could be understandable but in this case, the defendant had
used express terms by labeling the item a fact that cannot be ignored.10
The artwork of famous artists such as Hilda des Ste Croix cannot confuse anyone
because her works are outstanding and they always have the signatures.
Therefore, the claim or the argument the defendant may put that the item was
mistakenly labeled is weak and cannot hold water in reference to his experience
in this business.

 Moreover, Benjamin the owner of the gallery
did not later call the plaintiff later after finding that Reagan the
salesperson had sold this item expensively despite mislabeling it.11
Thus, it was clear that the defendant had the intention of defrauding the
clients by selling them fake items. Esso
Petroleum v Mardon 1976 QB 80112
is also another case that was decided on the ground of negligence. The
defendant had the capacity to appropriately advice the plaintiff on the
capacity of throughout gallons of oil but induced the plaintiff to sign a
contract that later led to losses. Thus, the defendant negligently failed to
provide enough information to the other party before making the decision.  

Some of the
defenses the defendant by use to counter argue this case are; first, the
defendant may use contributory negligence to argue that the damages which the
plaintiff suffered were partly due to his negligent. 13Benjamin
can argue in court that it was the duty of the plaintiff to establish that the
item she was buying was original and exactly what she wanted. However, the
plaintiff over depended on the scanty information that was given by the
salesperson. The plaintiff would have gone to an extent to ask other experts
even after buying the item to establish whether she has got the right item, but
she went with the item stayed with it for five years and later came complaining
after it started to fade off. Thus, the plaintiff holds part of the responsibility
for the damages caused, were that she was careful; she could not have incurred
this damage.14
Pennington v Norris 1956 96 CLR 1015
is one of the historical cases that were decided to base on contributory
negligent defense. Butterfield V Forrester (1809) 103 E.R. 926 is another early
case where contributory negligence was used as a defense

There are various
remedies the court uses in misrepresentation cases there is rescission where
the court rescinds or restructure the contract so that the parties can sign it
fresh on fair terms.16
Rescission makes the earlier signing to be void. Where the use of unfair terms
have been used from one party which has caused damage to another in a contract
then rescission is used to remove this. Rescission of the contract is reached
when the contract is still on the course of execution. Thus, the courts come in
to rectify the unfair terms so that each party could fairly benefit from the
contract.

Compensation for
damages is a second remedy which can be used. 17The
courts usually order for the compensation for the damages caused by
misrepresentation. The defendants are ordered to pay for the damages caused to
the plaintiff if it is established that indeed the defendant misled the
plaintiff during signing the contract. Compensation remedy comes when the contract
was long executed although unfairly.

In this case, I
could advise Shahida the plaintiff to go ahead by filing litigation against
Benjamin Looking Glass for fraudulently misrepresenting the information during
the time of the purchase of the art paint with an intention defrauding. From
the possible arguments of both parties, Shahida the plaintiff has an upper hand
and high chances of winning the case hence being compensated for the damages
caused. The courts could award Shahida compensation for the damages caused to
her due to the fact that the contract was executed long time ago and the courts
would not be able to strike fairness other than ordering compensation.

 

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