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A summary of the Misrepresentation Act, 1972, which provides criminal sanctions against misrepresentations in certain commercial transactions and expands the remedies available at common law and in equity for misrepresentation. The Act also amends the Sale of Goods Act, 1895-1952. the summary of provisions, the text of the Act, and its legislative history.
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(Reprint No. 1)
MISREPRESENTATION ACT, 1972
This Act is reprinted pursuant to the Acts Republication Act, 1967, and incorporates all amendments in force as at I October 1991.
6 I should be noted that the Act was not revised (for obsolete references, etc.) by the Commissioner of Statute Revision prior to the publication of this reprint.
ii Misrepresentation Act, 1972
Section
PART 1 PRELIMINARY
PART 11 CRIMINAL SANCTIONS AGAINST MISREPRESENTATION IN CERTAIN COMMERCIAL TMNSACTIONS 4. Misrepresentation made in the course of a trade or business
PART Ill EXPANSION OF REMEDIES AVAILABLE AT COMMON LAW AND IN EQUITY FOR MISREPRESENTATION
PART IV AMENDMENT O F THE SALE OF GOODS ACT, 1895-
PART 11^1 i
2 Misrepresentation Act, 1972
Misrepresentation made in the course of a trade or business (^) Ii
person by whom the trade or business is conducted, a person duly authorized to act on his behalf, or a person acting in the course of his employment-
( a ) for the purpose of causing or inducing any other person to enter into a contract;
or
( b ) for the purpose of causing or inducing any other person to pay any pecuniary (^) I amount, or to make over or transfer any real or personal property, to the I person by whom the representation is made or any other person, I I the person by whom the trade or business is conducted, and the person by whom the
exceeding five hundred dollars.
( 2 ) Where in any proceedings under this section it is proved that a misrepresentation in fact acted as a material inducement to any person-
( a ) to enter into a contract;
( 6 ) to pay any pecuniary amount, or to make over or transfer any real or personal property, to the person by whom the representation was made, or any other person,
and that, in consequence, the person by whom the representation was made, or a person on whose behalf, or in whose employment, that person was acting, derived any direct or indirect consideration or material advantage, i t shall be presumed, in the absence of proof to the contrary, that the representation was made for the purpose of inducing the person to whom i t was made to enter into that contract, to pay that pecuniary amount, or to make over or transfer that real or personal property, as the case may require.
(3) It shall be a defence to a prosecution under this section-
( a ) that the person by whom the representation was made believed upon reasonable grounds that the representation was true; (: or
( b ) where the defendant is not the person by whom the representation was made-
(i) that the defendant took all reasonable precautions to prevent the
behalf, or in his employment;
(ii) that the defendant did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue.
(4) For the purposes of this section a representation constitutes a misrepresentation i f it is false in any material particular.
Misrepresentation Act, 1972
PART I
3
(5) Where a body corporate is guilty of an offence under this section, each member of the governing body of the body corporate who knowingly authorizes, suffers or permits the commission of the offence shall be guilty of an offence and liable to a penalty not exceeding five hundred dollars.
(6) This section does not affect any civil remedy, or any other statutory sanction or remedy, in respect of a misrepresentation.
(8) Proceedings for an offence against this section shall be disposed of summarily. (9) Proceedings for an offence against this section shall not be commenced unless the Attorney-General has consented to the commencement of those proceedings.
(10) In any proceedings for an offence against this section, an apparently genuine document purporting to record the consent of the Attorney-General to the commencement of those proceedings shall be accepted as proof of that consent in the absence of evidence to the contrary.
Misrearesentation Act. 1972
PART 111
5
(b) that the defendant was not the person by whom the representation was made and did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue. (3) Where in any proceedings before a court, it is proved that a party to a contract has rescinded, or is entitled to rescind, the contract on the ground of misrepresentation, the court after consideration of the consequences of rescission, and the consequences of a declaration under this section, in the circumstances of the case, may, if it considers it just and equitable to d o so, declare the contract to be subsisting and award such damages as it considers fair and reasonable in view of the misrepresentation.
(4) A declaration under subsection (3) of this section shall have effect according to its terms and shall be a bar to rescission.
(5) Where a contract has been rescinded but is subsequently declared to be subsisting under subsection (3) of this section, the respective rights and liabilities of the contracting parties shall be determined in all respects as if the contract had never been rescinded.
(6) In assessing any damages under this section, a court shall take into consideration any award of damages under any other provision of this section, or of damages or compensation under any other law, and in assessing damages or compensation in any proceedings under any other law relating to a contract, a court shall take into consideration any award of damages under this section.
Exclusion clauses
8. If any contract contains a provision that would, but for this section, exclude or restrict-
(a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made;
(b) any remedy available to another party to the contract by reason of such a misrepresentation,
that provision shall be of no effect except to the extent (if any) to which, in any proceedings arising out of the contract, the court may allow reliance on it as being fair and reasonable in the circumstances of the case.
Application of Part
PART IV
6 Misrepresentation Act, 1972
AMENDMENT Of-; 'I'Ht: SALE 01' GOODS ACI', 1895-10.
Short titles
Amendment of principal Act,s. 11-Where conditions to be treated as warranty
i
12. Section 35 of the principal Act is amended by inserting after the passage "he has accepted them, or" the passage "(subject to section 34 of this Act)".
