REPRESENTATION

 

representation,n.1. A presentation of fact — either by words or by conduct — made to induce

someone to act, esp. to enter into a contract; esp., the manifestation to another that a fact,

including a state of mind, exists <the buyer relied on the seller’s representation that the roof did

not leak>. Cf. MISREPRESENTATION. [Cases: Fraud 9.]

“Representation … may introduce terms into a contract and affect performance: or it may

induce a contract and so affect the intention of one of the parties, and the formation of the

contract…. At common law, … if a representation did not afterwards become a substantive part of

the contract, its untruth (save in certain excepted cases and apart always from fraud) was

immaterial. But if it did, it might be one of two things: (1) it might be regarded by the parties as a

vital term going to the root of the contract (when it is usually called a ‘condition’); and in this case

its untruth entitles the injured party to repudiate the whole contract; or (2) it might be a term in the

nature only of an independent subsidiary promise (when it is usually called a ‘warranty’), which is

indeed a part of the contract, but does not go to the root of it; in this case its untruth only gives rise

to an action ex contractu for damages, and does not entitle the injured party to repudiate the whole

contract.” William R. Anson, Principles of the Law of Contract 218, 222 (Arthur L. Corbin ed., 3d

Am. ed. 1919).

affirmative representation.A representation asserting the existence of certain facts pertaining

to a given subject matter. [Cases: Contracts 205.5; Fraud 9. C.J.S. Contracts § 341.]

false representation.See MISREPRESENTATION.

material representation.A representation to which a reasonable person would attach

importance in deciding his or her course of action in a transaction. • Material representation is a

necessary element of an action for fraud. [Cases: Contracts 94(2); Fraud 18. C.J.S. Contracts

• § 156, 166.]

promissory representation.A representation about what one will do in the future; esp., a

representation made by an insured about what will happen during the time of coverage, stated as a

matter of expectation and amounting to an enforceable promise. [Cases: Insurance 3035. C.J.S.

Insurance §§ 537, 546–551, 629, 634, 639, 694, 704, 759.]

1. The act or an instance of standing for or acting on behalf of another, esp. by a lawyer on

behalf of a client <Clarence Darrow’s representation of John Scopes>. [Cases: Attorney and Client

77–101. C.J.S. Attorney and Client §§ 191–217.]

concurrent representation.The simultaneous representation of more than one person in the

same matter. See CONFLICT OF INTEREST(2).

1. The fact of a litigant’s having such a close alignment of interests with another person that

the other is considered as having been present in the litigation <the named plaintiff provided

adequate representation for the absent class members>.

adequate representation.A close alignment of interests between actual parties and potential

parties in a lawsuit, so that the interests of potential parties are sufficiently protected by the actual

parties. • The concept of adequate representation is often used in procedural contexts. For example,

if a case is to be certified as a class action, there must be adequate representation by the named

plaintiffs of all the potential class members. Fed. R. Civ. P. 23(a)(4). And if a nonparty is to

intervene in a lawsuit, there must not already be adequate representation of the nonparty by an

existing party. Fed. R. Civ. P. 24(a)(2).

virtual representation.A party’s maintenance of an action on behalf of others with a similar

interest, as a class representative does in a class action. See VIRTUAL-REPRESENTATION

DOCTRINE. [Cases: Judgment 677; Parties 35.3. C.J.S. Judgments §§ 847, 851–854; Parties §

28.]

1. The assumption by an heir of the rights of his or her predecessor <each child takes a share

by representation>. See PER STIRPES. [Cases: Wills 550. C.J.S. Wills §§ 1809–1810.] 5. (usu.

pl.) Int’l law.A friendly but firm statement of a perceived wrong. • This is the mildest form of

complaint that one nation can make to another. — Also termed diplomatic representation. —

represent,vb.“Representations are in the nature of vigorous arguments employed in the hope of

securing a modification of the action complained of without implying necessarily or expressly an

intention ultimately to seek redress by more vigorous means.” Ellery C. Stowell, International

Law: A Restatement of Principles in Conformity with Actual Practice 427 (1931).

[Blacks Law 8^th]