152 



FRAUDULENT CONTRACTS. 



Requisites to 

 an action for 

 False Repre- 

 sentation. 



Or on Breacli 

 of Wan-anty. 



Caveat Emptor. 



A visible de- 

 fect and a 

 nude asser- 

 tion. 



DeaUn;? Talk. 



To support an action for a false representation or de- 

 ceit three cii'cumstances must combine. The representa- 

 tion must he proved, first, io be false in fact; sevoudh/, to 

 be false, or not to be true, to the knowledge and belief 

 of the person making it ; and thirdhj, that it was the false 

 representation which gave rise to the contracting of the 

 other party {e). 



But to support an action ex contractu, for a breach of 

 Warranty, it is not necessary that all these three circum- 

 stances should concur, in order to ground an action for 

 damages at law or a claim for relief in a Court of Equity ; 

 for where a Warranty is given, by which the party under- 

 takes that the article sold shall, in point of fact, be such as 

 is described, no question can be raised upon the scienter, 

 u^Don the fraud or wilful misrepresentation (/). 



If a purchaser, choosing to judge for himself, does not 

 avail himself of the knowledge or means of knowledge 

 open to him or to his Agent, he cannot be allowed to say 

 he was deceived by the seller's representations, the Rule 

 being Caveat emptor, and the knowledge of his Agent being 

 as binding on him as his own knowledge {g). 



Thus then there are cases of two sorts, in which, though 

 a man is deceived, he can maintain no action. The first 

 class of cases is, where the affirmation is that the thing- 

 sold has not a Defect which is a Visible one ; there the 

 imposition and the fraudulent intent are admitted, but 

 there is no tort. The second kind of cases is where the 

 affirmation is (what is called in some of the books) n. Nude 

 assertion ; such as the party deceived may exercise his own 

 judgment upon. For where it is a mere matter of opinion, 

 he ought to make inquiries into the truth of the asser- 

 tion, and it becomes his own fault from lacJies if he is 

 deceived (//). 



Assertions of this sort are what is called ^^ Dealing Tal/i," 

 such as is used more or less by Shopkeepers and Dealers 

 of every description. For instance, a Horsedealer tells his 

 customer that a Horse worth 40/. is "worth a hundred 

 guineas," or that a bad, clumsy goer, has "fine action," 



Q. B. 597; 40 L. J., Q. B. 221 ; 

 25 L. T., N. S. 329. 



{e) Attwood V. Small, 6 C. & F. 

 444, 445 ; Bch7i v. Kemble, 7 C. B., 

 N. S. 260. 



(/) Attwood V. Small, G C. & F. 

 444, 445 ; Broom's Maxims, 4th ed. 

 756. 



iff) Attwood V. Small, 6 C. & F. 

 232. 



(k) 1 Rol. Abr. 101 ; Yelv. 20 ; 

 1 Sid. 146 ; Cro. Jac. 386 ; £ailet/ 

 V. Menrll, 3 Bulst. 95 ; and per 

 Grose, J., Faslsij v. Freeman, 3 

 T. R. 54. 



