Silence where there is a duty to speak, may amount to a misrepresentation. Lord Blackburn said: ‘where there is a duty or an obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, I should be inclined myself to hold that that was fraud also.’
Lord Blackburn said: ‘I further agree in this; that when a statement or representation has been made in the bona fide belief that it is true, and the party who has made it afterwards comes to find out it is untrue, and discovers what he should have said, he can no longer honestly keep up that silence on the subject after that has come to his knowledge, thereby allowing the other party to go on, and still more, inducing him to go on, upon a statement that was honestly made at the time when it was made, but which he has not now retracted when he has become aware that it can be no longer honestly persevered in. That would be fraud too, I should say, that at present advised. And I go on further still to say, what is perhaps not quite so clear, but certainly it is my opinion, where there is a duty or obligation to speak, and a man in breach of that duty or obligation will hold his tongue and will not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was that he had nothing to say, I should be inclined myself to hold that that was fraud also.’
Judges:
Lord Blackburn
Citations:
(1880) 5 AC 925, (1880) 7 R (HL) 66
Jurisdiction:
Scotland
Cited by:
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Advanced Industrial Technology Corporation Ltd v Bond Street Jewellers Ltd CA 4-Jul-2006
The claimant left a valuable necklace with the defendant jewellers for sale. The jewellers fell into financial difficulties, and the director gave the necklace as security for a loan to the company. The jeweller failed to maintain payments on the . .
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Approved – With v O’Flanagan CA 1936
When negotiating to enter into a contract, a person may have a duty to disclose material facts which come to his notice before the conclusion of a contract if they falsify a representation previously made by him. A representation as to the profits . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
Lists of cited by and citing cases may be incomplete.
Contract, Torts – Other
Updated: 13 May 2022; Ref: scu.219299