Remedies For Misrepresentation Research Articles

Report on Proposals for Unfair Contracts Relief

The basic purpose of the law of contracts is to ensure that promises made for consideration are enforced. Achieving this basic purpose offends the conscience of society in some cases. The courts have a longstanding jurisdiction to refuse to enforce contracts that are determined to be unfair.This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts.This report presents its recommendations in the form of draft legislation, called the Contract Fairness Act. The Contract Fairness Act clarifies vexing ambiguities in the application of unconscionability, duress, and undue influence, creates a framework to integrate those concepts, includes a definition of “good faith,” provides for a duty of good faith in the performance of contracts, and addresses concerns about remedies for misrepresentation.

Remedies for misrepresentation in applications in the presence of fraudulent intent

Many contracts are based upon information provided in written applications, including insurance and employment contracts. However, the remedies used in these two contexts for material misrepresentation in the application differ. Insurers use the remedy of rescission and restitution, which returns the parties to status quo ante. Employers simply terminate the contract, leaving the parties where they are at the time of termination. This paper examines the role played by each remedy in the context of intentional misrepresentation. It is shown that rescission and restitution expands the situations in which mutually beneficial contracting will occur. It is also shown that insurers can offer lower premiums when the remedy of rescission and restitution is available.

Contracts: Remedies for Misrepresentation: Measure of Recovery

Contracts: Remedies for Misrepresentation: Measure of Recovery