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RDG
online Restitution Discussion Group Archives |
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Two points
Nor does the analogy to duress or negl/fraudulent
misrep. work, for the obvious reason that these acts involve wrongs.
Do they? Pointing a gun at your head is a wrong but I
am not sure that every instance of duress sufficient to avoid a contract
is a wrong. A threat to defame amounts to duress and is a threat of a
wrong but is it in itself a wrong?
Steve also wrote
I suggest, to place significant weight
on analogies to the law of innocent misrepresentation. The reason is
that the basis of this excuse is itself unclear. If I buy a car mistakenly believing it to have a 1.6
litre engine when it only has a 1.4 litre engine my mistake is not enough
to get me out of the deal. The other party is entitled to say "I am entitled
to rely upon the agreement we have struck. Your error is nothing to do
with me." If, however, my mistake is caused by the seller misrepresenting
the car's engine size, whether innocently or not, I can say "My consent
to this deal was vitiated by my mistake for which you are responsible.
The deal is off." These are the rules of the game.
Where there is no contract (eg a bare promise under a
deed) my mistake alone allows me to recover, I do not need to show that
you induced my mistake.
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