Smith v Kay: HL 1859

A party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.
Lord Cranworth rejected what he described as ‘a very desperate argument’ that a representation could not justify the setting aside of a bond because it was made some time before the bond was executed: ‘It is a continuing representation. The representation does not end for ever when the representation is once made; it continues on. The pleader who drew the bill, or the young man himself, in stating his case, would say, Before I executed the bond I had been led to believe, and I therefore continued to believe …’
Lord Chelmsford LC asked this question as to rescission based on an allegation of fraudulent misrepresentation: ‘can it be permitted to a party who has practised a deception, with a view to a particular end, which has been attained by it, to speculate upon what might have been the result if there had been a full communication of the truth?’


Lord Cranworth, Lord Chelmsford LC


[1859] EngR 38, (1859) 7 HLC 750, (1859) 11 ER 299




England and Wales

Cited by:

CitedCramaso 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 . .
CitedHayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
CitedSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 07 May 2022; Ref: scu.287390