misrepresentation,n. 1. The act of making a false or misleading assertion about something, usu. with the intent to deceive. • The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. [Cases: Fraud 9.] 2. The assertion so made; an assertion that does not accord with the facts. — Also termed false representation; (redundantly) false misrepresentation. Cf. REPRESENTATION(1). — misrepresent,vb.
“A misrepresentation, being a false assertion of fact, commonly takes the form of spoken or written words. Whether a statement is false depends on the meaning of the words in all the circumstances, including what may fairly be inferred from them. An assertion may also be inferred from conduct other than words. Concealment or even non-disclosure may have the effect of a misrepresentation …. [A]n assertion need not be fraudulent to be a misrepresentation. Thus a statement intended to be truthful may be a misrepresentation because of ignorance or carelessness, as when the word ‘not’ is inadvertently omitted or when inaccurate language is used. But a
misrepresentation that is not fraudulent has no consequences … unless it is material.” Restatement (Second) of Contracts § 159 cmt. a (1979).
fraudulent misrepresentation.A false statement that is known to be false or is made recklessly — without knowing or caring whether it is true or false — and that is intended to induce a party to detrimentally rely on it. — Also termed fraudulent representation; deceit. [Cases: Fraud 8.]
“A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion.” Restatement (Second) of Contracts § 162(1) (1979).
innocent misrepresentation.A false statement that the speaker or writer does not know is false;
a misrepresentation that, though false, was not made fraudulently. [Cases: Fraud 13(2).]
material misrepresentation. 1.Contracts. A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent. [Cases: Contracts 94. C.J.S. Contracts §§ 136, 139–140, 156, 158–160, 170–171, 173–174.] 2.Torts. A false statement to which a reasonable person would attach importance in deciding how to act in the transaction in question or to which the maker knows or has reason to know that the recipient attaches some importance. See Restatement (Second) of Torts § 538 (1979). [Cases: Fraud 18.]
“The materiality of a misrepresentation is determined from the viewpoint of the maker, while the justification of reliance is determined from the viewpoint of the recipient…. The requirement of materiality may be met in either of two ways. First, a misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent. Second, it is material if the maker knows that for some special reason it is likely to induce the particular recipient to manifest his assent. There may be personal considerations that the recipient regards as important even though they would not be expected to affect others in his situation, and if the maker is aware of this the misrepresentation may be material even though it would not be expected to induce a reasonable person to make the proposed contract. One who preys upon another’s known idiosyncrasies cannot complain if the contract is held voidable when he succeeds in what he is endeavoring to accomplish…. Although a nonfraudulent misrepresentation that is not material does not make the contract voidable under the rules stated in this Chapter, the recipient may have a claim to relief under other rules, such as those relating to breach of warranty.” Restatement (Second) of Contracts § 162 cmt. c (1979).
misrepresentation of source.See PASSING OFF.
negligent misrepresentation.A careless or inadvertent false statement in circumstances where
care should have been taken. [Cases: Fraud 13(3).]
[Blacks Law 8th]