Fraudulent Misrepresentation Research Articles

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal (‘SCA’) in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA’s findings were misconceived and suggests that the SCA’s reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

The Study of Maritime Fraud and Its Effect on Competitiveness of Nigerian Seaport (A Study of Apapa Seaport)

Ports play a key role in the Nigeria economy and development, as nearly 75% of the trade between the Nigeria and the rest of the world is handled in ports. Thus, the importance of ensuring efficiency in ports is related to the ability of the country to be competitive at international level. Unfortunately, corruption and extortion by the shipping agencies, terminal operators and government officials has continued to frustrate importers leading to price hike of commodities. This study is on maritime fraud and its effect on competitiveness of Nigerian seaport. The researchers adopted a sample size of 343 which was drawn from a population sample of 2,417. The questionnaire collected from the respondents was analyzed using descriptive statistics. The results indicated that government agency’s dishonesty affects the efficiency of customs procedures, also that fraudulent misrepresentation impacts on port service quality, cargo theft and clearing delays impact on ports service quality and the competitiveness of Nigeria seaports. The following recommendations were made; proactive disciplinary measure should be taken against dishonest government agency officials; custom procedures should be simplified through automation to ensure efficiency and that cargo tracking and monitoring instruments should be adopted to reduce cargo theft in Apapa seaports.

Bringing the Mixed Constitution Back In

No doubt exists that the separation of powers is a fundamental architectural principle in Canadian public law jurisprudence. But what about the idea of a mixed constitution? A simple CanLII search for “mixed constitution” turns up six cases. In five1 of these cases, the search reveals the following phrases: “pre-mix constituted goods,” “the mix constituting the excavated material,” “the Owners’ mixes constitute ‘bread and rolls’,” “the improper mixing constituted a fraudulent misrepresentation,” and “quality control for the asphalt mix constituted.” Clearly baking and aggregate blends figure largely in constituted mixes, but the constitutional jurisprudential sense is largely absent. That said, concerns about pre-mixing, constituted goods, excavating, improper mixing, and quality control do have some salience for the discussion that follows.

Did court dismiss fraudulent misrepresentation claims filed by student‐athletes on squash team?

The men's and women's varsity squash teams at Brown University played in the Ivy League, a Division I athletic conference. Both teams were composed of students who joined the squad after enrolling at Brown or who matriculated with the anticipation of playing on the team. The ones who matriculated with the intent of playing received a recruitment offer or some form of application support (typically a recommendation letter from the coach).

THE NEED FOR VIGILANCE IN BANKING TRANSACTIONS IN THE LIGHT OF PREVALENT FRAUD, MISREPRESENTATION AND PONZI SCHEMES IN THE BUSINESS WORLD The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas Case 323/12 [2013] ZASCA 19 Unreported

Numerous persons are inclined to take a risk by making short-term investments that promise substantial profit returns within the shortestpossible time. In this respect people take a gamble and try their luck at whatever opportunity that presents itself. With this growing trend has also arisen fraudsters, whose business is to prey on possible investors by making investments in non-existent business ventures, and large numbers of “investors” have lost vast amounts of money in these get-rich quick schemes. One such example is found in the recent SCA decision of The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas (The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas GNP (unreported) 2013-03-20 Case no 323/12). The case involved a specialist medical practitioner, Dumas, who made an investment into a fraudulent scheme, having been misled through a misrepresentation by an agent of Whitehead, mastermind behind thefraudulent Ponzi scheme. As a result thereof, Dumas lost a couple of million Rands into the insolvent estate of Whitehead. As illustrated by this case note and the age-old adage that says “a fool and his money are soon parted”, unwary persons could easily lose their hard-earned money. Hence, this case note seeks to enlighten would-be investors of the pitfalls of Ponzi schemes, such as huge financial loss as was experienced by Dumas, and encourage vigilance in making financial transactions. This it does through a critical examination of the Dumas judgment. It especially concerns the legal principles pertaining to monies that are transferred from one bank account to another bank account owing to fraudulent misrepresentation. Primarily, the case note takes a critical view of the manner in which the court applied theselegal principles. While the court, in the authors’ view, properly set out the legal framework, which is sound and correct, it nevertheless went wrong in its application of the law. Therefore, the authors contend that, judged from these very legal principles that the court set out, it nevertheless came to an incorrect conclusion. If left unchallenged, the effect of the judgment will be to set a precedent inappropriately and wrongly that could amount to an unwarranted curtailment of legal protection afforded to persons who are induced by fraud and misrepresentation to transfer money into other people’s bank accounts. In this case note the authors examine the canards of the judges’ reasoning leading up to their decision. As a starting point we examine the factual background of the case, then we move on to the critique and we conclude with the advice.

Why Fraudulent Misrepresentation Might Be An Issue for Your Business

The economy of the world has been tremendously affected throughout this COVID-19 pandemic. Companies were finding their way in engaging business to elevate the profit margins. Recently, fraudulent misrepresentation has brought to the attention of the public due to contractual disputes arises between parties especially in regards to the sale of goods of COVID-19 related product eg. Personal Protective Equipment (PPE) or medical equipment during this COVID-19 pandemic as such equipment has become a necessity during the pandemic. However, some people took this advantage to commit fraud that causing chaos within the industry. This Article aimed to focus on the fraudulent misrepresentation that arises in contractual disputes between companies hoping to rewards the readers to have a basic understanding of fraudulent misrepresentation.

Unicorn Poo and Blessed Waters: COVID-19 Quackery and FDA Warning Letters.

BackgroundThe COVID-19 pandemic has created a global setting of clinical crisis and human anxiety. Without available safe and effective vaccines and cures, an unscrupulous marketplace has emerged selling COVID-19 quackery (fraudulent misrepresentation of preventions and treatments).MethodsUS Food and Drug Administration (FDA) Warning Letters issued from March 2020 to July 2020 were analyzed for themes pertaining to unapproved, adulterated, and misbranded COVID-19 products.ResultsDuring this period, the FDA issued 3,139 Warning Letters of which 98 (3.14%) of these were focused on COVID-19-related drugs, devices, biologics, and dietary supplements (products and ingredients). Specifically, these Warning Letters revealed regulatory nonconformities involving 40 identified herbs, 22 minerals/compounds, 6 devices and biologicals, and 3 vitamins. Products included hand sanitizers; COVID-19 antibody test kits; herbal teas and tinctures; nasal gel; toothpaste; and 1 vaccine. Nine Warning Letters were issued for products being sold via the Amazon online shopping platform.ConclusionA small percentage of FDA Warning Letters recently have been focused on COVID-19. These Letters expose the blatant and potentially harmful quackery of vendors across the world who prioritize financial gain over clinical beneficence. Patient history-taking should include queries about non-traditional and unapproved products to identify, document, and report potentially harmful quackery. FDA Warning Letters are a component of meaningful corrective action; however, greater effort in spreading awareness of such misrepresented, unapproved, and adulterated products is needed to deter purchases of such products.

Взаимосвязь фальсификации финансовой отчетности и враждебного поведения руководства

Th e article uses the results of recent sociological research on the impact of hostile behavior of company managers, so-called «abuser» managers, negative type of management, on employees of companies that cause signifi cant harm to the economy. Th e article establishes the relationship between hostile behavior of management and fraudulent misrepresentation of accounting (fi nancial) statements and proves the need to conduct certain audit procedures aimed at identifying hostile behavior of management.

(Emotional Support) Peacocks on a Plane: Revising Federal Reasonable Accommodations Laws for Emotional Support Animals

In an era of increased healthcare and medication costs, using the comfort of an emotional support animal as a disability mitigation presents a valuable alternative to an overtaxed healthcare system. The rise in use of emotional support animals has outpaced the regulation of them, however. Four key federal statutes affect the legal rights and obligations for assistive animals under federal law — the Americans with Disabilities Act, the Rehabilitation Act, the Fair Housing Act, and the Air Carrier Access Act. While all four require accommodations for service animals, only the latter two require the same for emotional support animals. Even so, there is no consensus on how to define emotional support animals — the Americans with Disabilities defines them by exclusion, while the Air Carrier Access Act defines them by inclusion into a broader “service” animal category, and the rest merely defer to the latter. The resulting gap and confusion in federal regulation produce rather absurd results: peacocks on planes, alligators in apartments, and plenty of confusion regarding whether anyone can do anything about either. This Article argues for eliminating this gap in federal regulations with clear, prescriptive revisions to key disability laws and their reasonable accommodation requirements as applied to emotional support animals. Namely, it proposes that Congress should amend select reasonable accommodations laws so that the definition of “emotional support animal” mirrors the definition for “service animal.” These proposed revisions address three main problems plaguing the emotional support animal landscape: (1) fraudulent misrepresentation of pets as emotional support animals, (2) misrepresentation of absurdly untenable, wild, or exotic pets as emotional support animals, and (3) lack of accessibility to emotional support animals for disabled individuals who could greatly benefit from them. An emotional support animal under the proposed framework would be dog, cat, or miniature horse whose presence — or a task it performs — provides comfort or emotional support to a disabled individual. Moreover, this Article calls for eliminating the statement of need, which would further align the emotional support animal framework with that of the service animal. In doing so, it clarifies accommodation provider responsibilities with regard to these animals, and fair use of a valuable accommodation option for those disabled individuals seek to benefit legitimately from it.

Prevention Model of Disguised Crime in Indonesian Banking Facing the Deviation Actions of The Credit Use/Side Streaming by Debtor; Theoretical Review On Risk Management Of Default Due To Side Streaming

AbstractThe purpose of this paper is to explore and conduct a systematical research through reading materials (researching by reading) on the possibility of prevention steps to prevent or reduce the Deviation Actions of the Credit Use (Side Streaming) by Debtor in the Problem of Banking Credit Facilities Utilization in Indonesia. This paper is constructed by referring to one step of researching conducted by Ian Crow and Natasha Semmens in “Researching Criminology” (2006). It is stated that in researching by reading there are three approaches, they are (1) process of literature review; (2) process of reading and utilizing other people research findings; and (3) process of data analysis which is not used in researches, for example data taken from a writing in a newspaper or other mass media called content analysis. This research concludes that : side streaming as a form of WCC and criminogenic with its fraudulent misrepresentation mode. Although the mode has been regulated in Law of Crime, the actions of side streaming has not been set up in banking crime actions in Indonesia. For the time being, side streaming occurs due to the availability of chances or opportunities and the possibility of using it to hide fraudulent misrepresentation actions. Keyword: side streaming, criminal banking, fraudulent misrepresentation, enterprise risk management, white collar crime, isolation, rational choice.

From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law. Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists.

Mining corporate annual reports for intelligent detection of financial statement fraud – A comparative study of machine learning methods

Financial statement fraud has been serious concern for investors, audit firms, government regulators, and other capital market stakeholders. Intelligent financial statement fraud detection systems have therefore been developed to support decision-making of the stakeholders. Fraudulent misrepresentation of financial statements in managerial comments has been noticed in recent studies. As such, the purpose of this study was to examine whether an improved financial fraud detection system could be developed by combining specific features derived from financial information and managerial comments in corporate annual reports. To develop this system, we employed both intelligent feature selection and classification using a wide range of machine learning methods. We found that ensemble methods outperformed the remaining methods in terms of true positive rate (fraudulent firms correctly classified as fraudulent). In contrast, Bayesian belief networks (BBN) performed best on non-fraudulent firms (true negative rate). This finding is important because interpretable ``green flag” values (for which fraud is likely absent) could be derived, providing potential decision support to auditors during client selection or audit planning. We also observe that both financial statements and text in annual reports can be utilised to detect non-fraudulent firms. However, non-annual report data (analysts’ forecasts of revenues and earnings) are necessary to detect fraudulent firms. This finding has important implications for selecting variables when developing early warning systems of financial statement fraud.

On the CPR’s Tridentian Fig Leaf and the Commercial Court’s Judicial Veil – Part II

In the first section of this two-part article the author expressed the opinion that the domestic (English) judicial system fails to acknowledge the Strasbourg Court’s accepted opinion that, the right ‘ . . . to a fair [ . . ..] hearing . . .’, as per the right of access to Court, should be differentiated as between: (i) ‘physical’; and (ii) ‘remedial’; access to the court. This second section will deal with two cases illustrating the points the author makes regarding access to the court. The first arises from a Spanish domicile (instructing on DPA terms), abattoir hygiene consultant’s claims for: (a) breach of his former English company’s articles of association; and (b) fraudulent misrepresentation, by his then English domiciled business partner. The second arises from a Paraguayan domiciled, international businessman’s claims for breach of a: (c) multi-jurisdictional crossborder credit transfer agreement; and (d) company director’s personal guarantee, secured on two real property mortgages (in Brazil), as well as other UK-based assets.

‘Fraud’ and ‘Misleading Commercial Practices’: Modernising the Law of Defects in Consent

AbstractThe rules provided by the civil codes on defects in consent were designed at a time when the notion of consumer law did not exist and fairness at the pre-contractual stage was not widely considered as a value worthy of protection. Matters have changed radically in the last three decades. The proliferation of rules protecting consumers on a European level, especially through information duties and rights of withdrawal, and the growing impact of general clauses, has led to a fragmentation of domestic contract law. This clash of different sets of rules is particularly conspicuous in the field of unfair commercial practices as the European legislator has not made provision for specific private law remedies for individual consumers in cases of misleading and aggressive commercial practices. This article addresses the particular issue of the applicability of the law of fraudulent misrepresentation to cases of misleading commercial practices. The purpose is to reconsider ‘fraud’ in terms of a defect in consent, in a manner that is both more in line with the modern features of European contract law and better able to counteract new market strategies based on exploiting cognitive weaknesses. The focus is thus put on the relationship between pre-contractual information duties and defective consent, as well as on some insights of law and economics, which demonstrate that ‘consent theories’ or ‘will theories’ cannot provide precise criteria to indicate when a contract should be void. In conclusion, a possible legislative intervention aiming to substitute the rules on fraud for a set of remedies for violation of information duties is discussed.

On the CPR's Tridentian Fig Leaf and the Commercial Court's Judicial Veil – Part I

In this first section of a two-part article the author expresses the opinion that the domestic (English) judicial system fails to acknowledge the Strasbourg court’s accepted opinion that, the right ‘ . . . to a fair [ . . ..] hearing . . .’, as per the right of access to Court, should be differentiated as between: (i) ‘physical’; and, (ii) ‘remedial’; access to the court. The second section will deal with two cases illustrating the points the author makes regarding access to the court. The first arises from a Spanish domicile (instructing on DPA terms), abattoir hygiene consultant’s claims for: (a) breach of his former company’s articles of association; and, (b) fraudulent misrepresentation, by his then English domiciled business partner. The second arises from a Paraguayan domiciled, international businessman’s claims for breach of a: (c) multi-jurisdictional crossborder credit transfer agreement; and, (d) company director’s personal guarantee, secured on two real property mortgages (in Brazil), as well as other UK based assets. A jurisprudence-based analysis of the potential justice deficit resulting from the judiciary’s seemingly automaton perceptions of their common law and statutory obligations under the Civil Procedure Act 1997 and the consequential Civil Procedure Rules. Accordingly, it is suggested that the premature applicability of (1) the CPR 3.4(2) Strikeout and CPR 24(2) Summary Judgment procedures, as well as (in the domestic litigation context), (2) the CPR 11(1) (including CPR PD 6B para. 3.1(6)) Challenge to Jurisdiction procedure, not only (a) fetter and wrongfully infringe the Respondent’s right to fully test the Applicant’s evidence contrary to Articles 6(1), 6(3) and 13 ECHR, as the astute Applicant acts before disclosure, but also (b) flouts the court’s and judiciary’s section 6(3)(a)-(b) Human Rights Act 1998 public authority duties, failing to note that they: ‘ . . . must consider all matters capable of having a bearing on that judgment, must act equitably as between [the parties], and must [find] accordingly.’ Thus, the court and judiciary acting as decision makers must not follow rules blindly: (i) irrespective of the weight of (I suggest misconstrued) precedent; and, (ii) in light of the degree of discretion purportedly given by Parliament.

Deliberate malfeasance or innocent error? Misrepresentation in pain medicine fellowship applications.

The phenomenon of misrepresentation of academic performance and scholarly activity should be of great interest to program directors and those who recruit physicians into academic or private practice. Misrepresentation of publication authorship in post-graduate training program applications has been reported in several previous studies, with an average incidence of 14% across medical specialties ⇓. Although misrepresentation may result from innocent error, admittedly, deliberate or fraudulent misrepresentation does occur. In this issue of Pain Medicine, Thompson et al. present their analysis of applications to a single ACGME-accredited Multidisciplinary Pain Medicine fellowship program in the Midwest over a three-year period. They cite a 5.3% rate of deliberate misrepresentation in publication authorship by fellowship applicants in this study. On further examination, a rate of deliberate misrepresentation of 12.5% was noted in fellowship applicants from fields other than anesthesiology and physiatry. There was no difference in the rate of …

Jaký rámec pro výkon auditorské profese stanovuje trestní právo?

Příspěvek se zabývá problematikou profesní odpovědnosti auditorů z hlediska trestního práva v České republice. V úvodní části jsou diskutovány základy trestní odpovědnosti, je rozebírán pojem trestného činu a další otázky, zejména problematika zavinění, a to nejen z pohledu trestní odpovědnosti fyzických osob, ale také z pohledu trestní odpovědnosti korporací. Samostatný zřetel je brán na otázku trestné součinnosti. V další části příspěvku jsou rozebírány skutkové podstaty některých trestných činů, které souvisejí s výkonem auditorské profese, například trestného činu zkreslování údajů o stavu hospodaření a jmění nebo trestného činu vystavení nepravdivého potvrzení a zprávy.

Defining the Borders of Uniform International Contract Law: The CISG and Remedies for Innocent, Negligent or Fraudulent Misrepresentation

The exact definition of the substantive scope of the United Nations Convention on Contracts fur the International Sale of Goods (CISG) of 11 April 1980 is a difficult but necessary task: Necessary because the scope determines over which domestic rules of law the Convention prevails, thereby preempting the concurrent domestic law’s application, and difficult because the CISG itself provides limited guidance about the method through which this definition is to be achieved. This article commences by discussing two approaches used in this regard in case law and writings on the Convention: (1) the reliance on Article 4 CISG, and (2) the use of dogmatic categories of domestic law such as contract and tort. Both are found wanting, in particular in light of Article 7(1) CISG calling for an internationally uniform interpretation of the Convention’s scope. Against this background, the article develops a novel two-step approach with Article 7(1) CISG in mind. According to this approach, a domestic law rule is displaced by the Convention if (1) it is triggered by a situation which the Convention also applies to (the factual criterion), and (2) it pertains to a matter that is also regulated by the Convention (the legal criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption. In third part of the article, the two-step approach is being applied to remedies for misrepresentation known in Common law jurisdictions, in turn dealing with remedies for innocent misrepresentation, negligent misrepresentation and fraudulent misrepresentation and thus defining their relationship towards the uniform law rules of the Sales Convention.

The misrepresentation as a reason of rescission of contract

Sometimes a person may enter into a contract as a result of a statement made to him which is false. If the statement is a term of the contract he will have a remedy for breach of contract. If the statement is not a term of the contract it is called a mere misrepresentation, and the consequence is rescission of contract. A misrepresentation is an untrue statement of fact which is one of the causes which induces the contract. A misrepresentation is statement, or conduct, which conveys a false or wrong impression. A contract may be rescined on the ground of misrepresentation even if innocent. An innocent misrepresentation is one made with reasonable ground for believing it to be true, as where an honest mistake is made. The types of misrepresentation are various. Acording to the Obligation Act it is not any misrepresentation cause the rescind of contract, but only the importance one. The importance misrepresentations are: the error in supstantia and error in personae if the contract is made bearing in mind intuit personae contract. This paper explanes different kinds of misrepresentation giving some proposal for legal interpretation of the provisions of the Obligation Act. The misrepresentation means an untrue statement of facts, made by one party to the other in the course of negotiating a contract, that induces the other party to enter into the contract. The person making the misrepresentation is called the representor, and the person whom it is made is the representee. A false of fraudulent misrepresentation is one made with knowledge of its falsehood, and intended to deceive. In the case of fraudulent misrepresentation representor did not honestly believe in the truth of his statement, which is not the same as saying that he knew it to be false. A negligent misrepresentation is one made with no reasonable grounds for believing in to be true. An innocent misrepresentation is one made with reasonable grounds for believing in to the true, as where an honest mistake is made. A fraudulent misrepresentation is actionable as a tort. When a person has been induced to enter into a contract by misrepresentation, he may in general either (1) affirm the contract and insist of the misrepresentation being made good, if that is possible, or (2) rescind the contract if it is still executory, and if all parties can be restored to their original positions, or (3) bring an action for damages, or (4) rely upon the misrepresentation as a defense to an action on the contract. A contract may be rescinded of the ground of misrepresentation even if innocent. Specific performance will not be decreed if a definite untrue representation has been relied on. It is clear that the claim for damages for fraudulent misrepresentation is a claim in tort. So the general governing rule is that the plaintiff should be restored to the position he would have been in if the representation had not been made. In the article is also analyzed comparative law related on misrepresentaton.

Misrepresentation: The Restatement's Second Mistake

The contract defenses of mistake and misrepresentation, while conceptually distinct in theory, contain an inefficient amount of overlap in practice. This is because a misrepresentation of one party, when believed, results in a mistaken belief of the other. Each produces a failure of consent resulting from at least one party’s misconception of the facts, and each may result in rescission coupled with restitution. The coextensiveness of the defenses suggests that, absent an overriding normative justification, the legal test and remedy should be the same for each. Such a normative justification exists only in the case of fraudulent misrepresentation which, unlike mistake or non-fraudulent misrepresentation, involves the intentional infliction of a dignitary harm. In such cases, punishment and deterrence are appropriate normative goals. Because punishment and deterrence are best achieved through provision of a punitive remedy rather than through determination of the remedy’s availability, they present no impediment to the adoption of a single defense in lieu of separate defenses of mistake and misrepresentation. Furthermore, punishment and deterrence are not fully achieved by the commonly available remedy of rescission coupled with restitution, which may impose reputational cost but leaves the wrongdoer in a financial position no worse than if fraud had not been committed. Accordingly, this Article recommends the adoption of a single defense of misconception coupled with a grant of discretion to courts for punitive damages in cases of fraud. Eliminating separate defenses and allowing an expanded remedy on the basis of intentionally false assertions would promote simplicity, efficiency, and predictability while buttressing the unique role of the fraud defense in contract law.