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GAZETTE
APRIL 1982
1967 Act (section 45 (1) of the 1980 Act). Accordingly
the plaintiff was entitled to recover, against the defen-
dant, damages for the loss of his bargain. (Note, Treitel
disputes the right to recover contractual damages under
a provision based on tortious liability and there is con-
fusion as to the actual nature of the damages awarded in
Watts
v.
Spence
- see Treitel, The Law of Contract 5th
ed. pp. 267 et seq.).
In any event, such a use of Part V of the 1980 Act is
not open to the Irish courts, limited as it is to contracts
for the sale of goods, hire purchase agreements and the
supply of services, see section 43.
It remains to be seen whether limiting Part V to such
contracts is the correct approach to adopt. It has been
seen that the retention of the Rule in
Wilde
v.
Gibson
is
justified by the need for finality in land sales. Problems
with the doctrine of merger have also been avoided.
However it is equally clear that, by excluding contracts
for land, certain house purchasers may be left
remediless save for the contractual right to damages
under the General Conditions of Sale. Moreover a
means of reducing the impact of the Rule in
Bain
v.
Fothergill
has been lost. On balance two classifications
governed by different statutory or common law rules
can only add to the confusion that surrounds the law of
misrepresentation.
Summation:
There are a number of defects apparent in Part V.
Firstly, problems arise from the failure to legislate in
positive rather than negative terms, for example, the
right to damages for innocent misrepresentation arises
only indirectly. Secondly, we have seen the difficulties
involved in 'lifting' English provisions, for example in
relation to sections 44 (b), 45 (2) and 46. Thirdly, and
most importantly, the provisions show the difficulty of
trying to legislate for misrepresentation solely in rela-
tion to certain categories of contracts. What was re-
quired was a separate short Act dealing with the entire
area of misrepresentations. Such a uniform approach
coupled with knowledge of how the English provisions
have worked since 1967 would have been a very valuable
addition to the law of contract. As it stands, Part V has
little to recommend it.
Footnotes:
1.
See also Misrepresentation Act (N.I.) 1967 - discussed in J.C.W.
Wylie, Irish Conveyancing Law, s.6.70 et seq.
2.
LI948] 1 H of L cas. 605.
3.
[l905] 1 Ch. 326.
4.
[1914] I.R. 378.
5.
See
Pennsylvania Shipping Co.
v.
Cie Nalionale de Navigation
1936 155 L.T. 294 - see Wylie 6.68.
6.
Wylie 6.70.
7.
Gosling v. Anderson
[1972]. C.L.Y. 492,
Jarvis v. Swan Tours
[197311 Q.B. 233, Lord Denning at p. 237,
Davis d Co. (Hines)
v.
Afa Minerva (EMI) Ltd. [1974[ 2 Lloyds Rep. 27.
8.
Doyle v. Olby (Ironmongers)
[1969] 2 W.L.R. 673,
Watts v.
Spence
[19751 2 W.L.R. 1039,
Fd H Entertainments v. Leisure
Enterprises Ltd.
L1976] 120 Sol. Jo. 331.
Howard Marine d
Dredging Co. Ltd. v. Ogden d Sons Ltd.
[1978] 2 W.L.R. 515.
9.
Law Reform Committee, 10th Report, Innocent Misrepresenta-
tion (Cmnd. 1782) para. 2.
10. N.9 above para. 6-8.
11. See Wylie 19.02.
12. See Wylie 6.71.
13. See Actionable Misrepresentation (Turner ed.) (3rd ed.) 1974
(Butterworth) p. 255.
14. See Turner n.13, Chapter XII, also Wylie 6.71.
15.
Hedley Byrne d Co. Ltd.
v.
Heller d Partners Ltd.
Il964] A.C.
465.
16. The Irish Courts have applied Hedley Byrne restrictively - see
Bank of Ireland
v.
Smithll966[
I.R. 646 as applied in
Stafford
v.
Keane Mahony Smith,
21 March 1980, H. Ct. unreported.
17. See Wylie 6.71.
18. As in
Carbin
v.
Somerviile
L1933] I.R. 276 although that was a
case on fraudulent misrepresentation.
19. Incorporated Law Society of Ireland, General Conditions of
Sale, condition 21 (2).
20. Sale of Goods and Supply of Services Act 1980, s.4.
21. Statute of Limitations 1957,
s.ll(1) (a). This presupposes that
the statutory period of limitation of actions for non-fraudulent
misrepresentation is the same as for actions for breach of con-
tract.
22. S. 3 of the N.I. Act and the U.K. Act were both replaced by s. 8
of the Unfair Contract Terms Act 1977. Note this new provision
refers to contracts and not agreements.
23. 9th ed. at p. 278.
24. 11974] 3 All E.R. 511. Other English cases include
Cremdean
Properties v. Nash
[1977] 241 E.G. 837,
Howard Marine and
Dredging Co.
v.
Ogden and Sons
[19781 2 W.L.R. 515.
25. 9th ed. at p. 278.
26. See Wylie 6.73.
27. (1874) L.R. 7 H.L. 158.
28. See Wylie 12.78 et seq. See also O'Driscoll, [l975] 10 Ir. Jur.
203, where
Bain
v.
Fothergill
is discussed.
F.L.A.C.
F . L . A . C . h a ve o p e n ed a C ommu n i ty
Ri gh ts Ac t i on Ce n t r e, in J o h n ' s L a ne
We s t, T h om a s S t ., Dub l in 8. T h e in-
itial f u n c t i on of t he c en t re is t o p r o-
vide adv i ce a nd a s s i s t ance in Social
We l f a r e c l a ims a nd a pp e a l s, in-
c l ud i ng r e p r e s e n t a t i on b e f o r e a pp e al
t r i bun a l s, a nd a l so t o assitst with
Co r p o r a t i on Ho u s i ng p r o b l ems.
T h e Ce n t re is o p en five a f t e r n o o ns
a nd t wo even i ngs a we e k. If you a re
i n t e r es t ed in b e c omi ng i nvo l ved in
t he p r o j e ct p l ease t e l e p h o ne 726464.
43