Cremdean Properties Ltd v Nash: CA 1977

The defendant had relied on a non-reliance clause in the special conditions of a tender: ‘Messrs. Lalonde Bros and Parham for themselves, for the vendors or landlord whose agents they are give notice that (a) These particulars are prepared for the convenience of an intending purchaser or tenant and although they are believed to be correct their accuracy is not guaranteed and any error, omission or misdescription shall not annul the sale or be grounds on which compensation may be claimed and neither do they constitute part of an offer of a contract. (b) Any intending purchaser or tenant must satisfy himself by inspection or otherwise as to the correctness of each of the statements contained in these particulars.’ The clause was an attempt to circumvent the 1967 Act (as amended).
Held: A statement of opinion if intended to be relied upon or acted upon could amount to a misrepresentation. The clause did come within section 3, but, Bridge LJ said, ‘Mr. Newsom’s able argument on behalf of the defendant can really be summarised very shortly. In effect what he says is this. The terms of the footnote are not simply, if contractual at all, a contractual exclusion either of any liability to which the defendant would otherwise be subject for any misrepresentation in the document, or of any remedy otherwise available on that ground to the plaintiff. The footnote is effective, so the argument runs, to nullify any representation in the document altogether; it is effective, so it is said, to bring about a situation in law as if no representation at all had ever been made. For my part, I am quite unable to accept that argument. I reject it primarily on the simple basis that on no reading of the language of the footnote could it have the remarkable effect contended for . . I am quite content to found my judgment in this case on the proposition that the language of the footnote relied upon by Mr. Newsom simply does not, on its true interpretation, have the effect contended for. But I would go further and say that if the ingenuity of a draftsman could devise language which would have that effect, I am extremely doubtful whether the court would allow it to operate so as to defeat section 3. Supposing the vendor included a clause which the purchaser was required to, and did, agree to in some such terms as ‘notwithstanding any statement of fact included in these particulars the vendor shall be conclusively deemed to have made no representation within the meaning of the Misrepresentation Act 1967,’ I should have thought that that was only a form of words the intended and actual effect of which was to exclude or restrict liability, and I should not have thought that the courts would have been ready to allow such ingenuity in forms of language to defeat the plain purpose at which section 3 is aimed.’
Scarman LJ agreed saying: ‘Nevertheless, the case for the appellant does have an audacity and a simple logic which I confess I find attractive. It runs thus: a statement is not a representation unless it is also a statement that what is stated is true. If in context a statement contains no assertion, express or implied, that its content is accurate, there is no representation. Ergo, there can be no misrepresentation; ergo, the Misrepresentation Act 1967 cannot apply to it. Humpty Dumpty would have fallen for this argument. If we were to fall for it, the Misrepresentation Act would be dashed to pieces which not all the King’s lawyers could put together again.’


Bridge LJ, Scarman LJ


(1977) 244 EG 547


Misrepresentation Act 1967 2(1) 3, Unfair Contract Terms Act 197


England and Wales

Cited by:

CitedWilliam Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract

Updated: 16 May 2022; Ref: scu.185666