Distinguish between fraud and misrepresentation

Fraud         To establish fraud, a plaintiff typically has the burden of proving each of the following elements: The defendant made a representation of one or more material facts; The representation was false when it was made; The defendant knew the representation was false when the defendant made it, or defendant made it recklessly (i.e., without knowing whether or not it was true); The defendant made the representation with the intention that the plaintiff rely upon it; The plaintiff relied upon the representation; and The plaintiff suffered damages as a result of the reliance. For example, if the plaintiff wishes to purchase a house from the defendant, and the defendant knows the house is infested with termites, the defendant's actual representation that the house is free from termites coupled with the plaintiff's reliance upon that representation might support a subsequent action by the plaintiff for fraud. (Please note that the terms of a sales contract can affect the viability of a claim for fraud arising from the sale of a home.)

Silent Fraud          Silent fraud occurs when a defendant fails to disclose material facts. To establish this, plaintiff has the burden of proving each of the following elements by clear and convincing evidence: The defendant failed to disclose one or more material facts about the subject matter of the claim; The defendant had actual knowledge of the fact(s); The defendant‘s failure to disclose the fact(s) caused the plaintiff to have a false impression; When the defendant failed to disclose the fact(s), the defendant knew the failure would create a false impression; When defendant failed to disclose the fact(s), defendant intended that plaintiff rely on the resulting false impression; The plaintiff relied on the false impression; and The plaintiff was damaged as a result of the reliance upon the false impression. For example, where a defendant sells a plaintiff a car where the defendant knows the odometer had been rolled back, but the defendant does not mention to the plaintiff that the odometer is not accurate, the defendant knows that it is highly probable that the plaintiff would rely upon the mileage figure from the odometer in making the decision to purchase the car. It is likely that the defendant's silence under these circumstances would support a subsequent action for silent fraud.

Innocent Misrepresentation     Even an innocent misrepresentation of a material fact may support a cause of action. Typically, to sustain a claim of innocent misrepresentation, a plaintiff must establish that: The defendant made a representation of one or more material facts; The representation was made in connection with the making of a contract between the plaintiff and defendant; The representation was false when it was made;


ROLL NO.571010391

‖     Groves v. If expectation damages cannot be ascertained.571010391 .‖ Limited to reasonably foreseeable damages. and The plaintiff‘s loss benefited the defendant. They want to award the cost of completion only when it is not disproportionate to the value of the property or when changes are aesthetic in nature. Aim is to put promise ―in as good a position as he would have occupied had the defendant performed his promise. Ordinarily. They believe there would be economic waste here. Objective: Expectancy In a breach of contract by defendant. John Wunder (MN) – leased land and wanted it leveled on return. a lawyerly term for drafting a complaint for a lawsuit. innocent misrepresentation can provide a good alternative theory of the defendant's liability . Two elements of restitution: benefit conferred on DD. Expectancy Principle – give the nonbreaching party what he was promised so far as money damages can satisfy. if this is possible and does not involve unreasonable economic waste (say it‘s not economic waste bc it‘s not wrecking a completed physical structure) The dissent argues for the diminution in value…difference in the value of the property as it is and what it would have been worth if it had been built in conformity with the contract (give the mkt/economic value).such that the defendant's denial of knowledge in order to defeat the fraud claim may actually support the plaintiff's alternative claim for innocent misrepresentation. Retention of benefit w/o compensation would be unjust Reliance Interest – a party‘s interest in recovering losses suffered by virtue of reliance on the contract. even if the cost of completion exceeds the increase in the fair market value that the work would bring (backward looking) • First restatement…the aggrieved party can get judgment for: the reasonable cost of construction and completion in accordance with the contract. For example. no enforceable contract exists at the time the suit is brought (either rescinded or never existed) or it is a losing contract (where the victim of the breach would have lost money had the contract been performed). Puts nonbreaching party back in the position they were in when the contract was made…makes the party ‗whole‘ again.Summer 2011. As even where fraud exists it can often be difficult to prove absent a confession by the defendant. the plaintiff may be unable to establish that the defendant knew or should have known that his representation of a particular material fact was false at the time it was made. Requires the DD to give the money value of the benefit that the DD received from partial performance of the contract.MBA 111 SEMESTER     The plaintiff would not have entered into the contract had the defendant not made the representation. a plaintiff can plead more than one theory of liability against a defendant. compensation for nonbreaching party.      Restitution Interest (quasi-contract damages) – the interest of a party in recovering the value conferred on the other party through efforts to perform a contract. even where there is some inconsistency between the theories of liability. Under standard pleading practice. but can nonetheless establish a cause of action for innocent misrepresentation. whether or not there was a corresponding gain to the opposite party. (economic waste applies when a MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. The plaintiff suffered a loss as a result of entering into the contract. Q 2 . There is also a ―duty to mitigate damages.what are the remedies for breach of contract?. There may be circumstances where a plaintiff is unable to prove a defendant acted with the intent to defraud. the PP is entitled to the cost of completing the work/ remedying the defect. which the DD failed to complete. = costs incurred by the nonbreaching party in partial performance of the contract. not punishment for breaching party.

000 Measure gives expectancy and deters breach       Peevyhouse v. not the cost of completion (Restatement Second) No person can recover a greater amount of damages for breach of an obligation that he would have gained from full performance Remedial work was incidental…primary object of contract was economic    Advanced. if construction and completion in accordance with the contract would involve unreasonable economic waste In both cases.000.MBA 111 SEMESTER structure already exists and would have to be torn down and rebuilt at a cost that would be imprudent and unreasonable). Breaching party compensate and no MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO.PP leased DD farm to mine as long as they filled in all pits and smoothed the surface. the damages would be zero. (forward looking) • First restatement…the aggrieved party can get judgment for: the difference btwn the value that the product contracted for would have had and the value of the performance that has been received by the PP.Summer 2011. Efficient breach – when the detriment to the nonbreaching party is smaller than the gains to the breaching party. cost of completion can be awarded even if it exceeds the diminution in value. if cost of completion was $8.. 348 the reasonable cost of completing performance OR of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him (no talk about economic waste)    Acme Mills Elevator Co. This is true even if the breaching party benefits • Under the UCC. then the breach is efficient. even when the breach occurs because the party contracts to a 3rd party at a higher price than the mkt value of the original contract. then the damages awarded would be $8.571010391 . (Note) . if property is held for other reasons (special significance) or if court is confident that the money will be used to complete the contract. If buyer covers. he can recover: cover price – contract price. Wilks (Note) – suit by homeowners dissatisfied with a contractor‘s work.   - Restatement Second §347. damages should not exceed change in fair mkt value However.000 and it added a value of $12. v. the damages formula is mkt price of the goods at the time and place of delivery minus the contract price.e. Inc. court gave a cost-of-repair figure far higher than the probable diminution in mkt value of the house If property is held for economic value. then sold to a 3rd party at a higher contract price and thus failed to deliver goods to PP In a breach of contract for the delivery of goods. Courts granted only the diminution in value of the land. in which case. replacement cost is the upper level of what PP can recover • i. • This formula may result in a negative number. Garland Coal & Mining Co. v. Johnson – contracted to sell grain to PP.

(Restatement. but a bill of exchange is normally entitled to three days of grace unless it is payable on demand. • Acceptance: A cheque does not require any acceptance while a bill must be accepted before the drawee can be made liable upon it.What is the distinction between cheque and bill of exchange?.  Q 4. upon an obligation of such person to a third person. cost of taken property is the measure. PP can collect from the benefit the breacher received.MBA 111 SEMESTER one loses . • Payment:   A cheque is payable immediately on demand without any days of grace. DD took gravel and PP sued for the FMV of the gravel With a willful breach.   A cheque differs from a bill of exchange in the following respects: • Drawee: A cheque is always drawn on a bank or a banker while a bill of exchange can be drawn on any person including a banker. of Contracts) Looks to replacement costs to put PP in expectancy position • Gives expectancy.Summer 2011. but doesn‘t deter breach        Laurin v. Want of assets in the hands of the banker is sufficient notice. No party is made worse off by nonperformance and at least one party is better off. • Notice of dishonor:  When a cheque is not met. If value of taken property outweighs change in value to real property. and presupposes an original contract.. in a contract of guaranty. A contract of guaranty is a collateral undertaking.571010391 . while. default. with whom the contract is made. • Crossing:  A cheque may be crossed but there is no such provision in the case of a bill of exchange.Distinguish between indemnity and guarantee?. the undertaking is to make good and save harmless the person. while a contract of indemnity is original and independent. notice of dishonor is not necessary. Even though it was economically efficient. the obligation is to answer for the debt. DeCarlis (Note) – PP bought land from DD and prior to the closing of the transaction. fairness Q 3. In a contract of indemnity. 2nd. It is necessary to give a notice of dishonor in order to make the drawer of a bill liable. they must pay • Removal of gravel did not diminish value of land public policy. MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. or miscarriage of another to the person with whom the contract is made.

however cannot be countermanded. People are often confused between these two entities and do not know which one they should adopt for their purposes. Two such formations are Companies Limited by Shares and Companies Limited by Guarantee that are more prevalent in Britain and Ireland.distinguish between companies limited by shares and companies limited by guarantee. Q 5. But a bill of exchange cannot be so drawn. This one point helps companies limited by guarantee to raise funds more easily than companies limited by shares as they can show how they propose to use the money. a secretary and a declarant at the time of coming into existence.571010391 . • Noting and protesting:  A cheque is not noted or protested for dishonor and is generally inland. This article will differentiate between Companies Limited by Shares and Companies Limited by Guarantee by discussing their features and pros and cons. • Presentment:  A bill of exchange must be duly presented for payment otherwise the drawer will be discharged. companies limited by guarantee have specific clauses and rules dictating their areas of operation.Summer 2011.? There are several ways of structuring a company to start a business.MBA 111 SEMESTER •  Payable to bearer on demand: A cheque can be drawn payable to bearer on demand. A company limited by guarantee is lesser known of the two types and is generally formed in case of non profit companies. The payment of a bill. The most notable difference between these two entities is that companies limited by shares exist for making profit whereas companies limited by guarantee are non profit making companies. These two entities also differ in their articles of association and memorandum as companies limited by shares have very general clauses that give them liberty to engage in any legal trade or business activity. No such protection is available to the drawee or acceptor of a bill of exchange. • Protection:    A banker is given statutory protection with regard to payment of cheques in certain circumstances. Different nomenclatures are adopted for the purpose of taxation and profit sharing. There are no major differences in the structure of the two types of companies and both Companies Limited by Shares and Companies Limited by Guarantee have at least one director. whereas a cheque does not require any stamp.    MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. • Stamp:   A bill of exchange must be stamped. Guarantee companies are formed to provide a specific service to public. • Countermanding payment: A cheque may be revoked by countermand of payment. It tends to have members rather than shareholders. On the other hand. There are both similarities as well as differences in the two types of companies. The drawer of a cheque is not discharged by failure of the holder to present it in due time unless the drawer has sustained damage by the delay. Prominent example of companies limited by guarantee are charities that have self imposed restrictions on them to assure the donors that their donations are spent according to their wishes and not in a manner that they do not approve.

While computers and the Internet have made our lives easier in many ways. where they are asked to enter personal information. churches. Both of these methods lure users to fake websites (that appear to be legitimate). Cybercrime also includes non-monetary offenses. Perhaps the most prominent form of cybercrime is identity theft. addresses. research organizations and to purchase freehold property. credit card numbers. it is smart to protect yourself by using antivirus and spyware blocking software and being careful where you enter your personal information   MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. This includes anything from downloading illegal music files to stealing millions of dollars from online bank accounts. it is unfortunate that people also use these technologies to take advantage of others. Guarantee company structure is mostly used by schools. For this reason. it is smart to always check the URL or Web address of a site to make sure it is legitimate before entering your personal information. Two of the most common ways this is done is through phishing and pharming. Q. and other information criminals can use to "steal" another person's identity. This includes login information. bank account numbers. There are members and not shareholders in case of a guarantee company where members pledge to contribute a predetermined sum at the time of formation of the company (Pound 1). phone numbers.571010391 . the examples above are only a few of the thousands of crimes that are considered cybercrimes. clubs. such as usernames and passwords. Because cybercrime covers such a broad scope of criminal activity.Summer 2011. in which criminals use the Internet to steal personal information from other users.?  Cybercrime is criminal activity done using computers and the Internet.MBA 111 SEMESTER  Another major difference between Companies Limited by Shares and Companies Limited by Guarantee is the absence of share capital in the case of companies limited by guarantee.6 What is the definition of cyber crime. Therefore. such as creating and distributing viruses on other computers or posting confidential business information on the Internet.

MBA 111 SEMESTER Master of Business Administration . Act. cannot be referred to arbitration.P. What is the role of a Conciliator?. such as adjudication of a person as an insolvent.   The RTA's Dispute Resolution Service is staffed by trained conciliators. Disputes relating to appointment of a guardian.R. Q2.Summer 2011.. Generally speaking all disputes of a civil nature can be referred to Arbitration e.g. The conciliator's role is to assist parties involved in a dispute to reach an agreement on issues that they have been unable to resolve themselves.T. However. The conciliator can: MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO.571010391 . Matters falling within the preview of the M.4 Credits (Book ID: B0764) Assignment Set.2 (60 Marks)  Q.MBA Semester III MB0051– Legal Aspects of Business . certain disputes where the law has given jurisdiction to determine certain matters to specified tribunal only.1 What are the situations which cannot be referred to arbitration. An illustrative list of such matters is given below :— Testamentary matters involving questions about validity of a will. breach of a contract. Disputes pertaining to criminal proceedings Disputes relating to Charitable Trusts Winding up of a company Matters of divorce or restitution of conjugal rights Lunacy proceedings Disputes arising from an illegal contract Insolvency matters. question of assignment or right to hold premises etc.

False Representation The practice of making any oral or written statement or representation which: Falsely suggests that the goods are of a particular standard quality. MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. More information about privacy of information is available. maintain or repair the goods until it has achieved a specified result. What are the unfair trade practices under the MRTP Act. Represents that the seller or the supplier has a sponsorship or approval or affiliation which he does not have.False Offer Of Bargain Price Where an advertisement is published in a newspaper or otherwise. Falsely suggests that the services are of a particular standard. second-hand renovated. or Gives false or misleading facts disparaging the goods. • if such representation is materially misleading or there is no reasonable prospect that such warranty. or the price which any person coming across the advertisement would believe to be better than the price at which such goods are ordinarily sold. Q3. quantity. it shall amount to an unfair trade practice. approval. whereby goods or services are offered at a bargain price when in fact there is no intention that the same may be offered at that price.571010391 . who is wrong or what the outcome of the dispute should be tell people what to do make rulings force parties to participate in the conciliation process. performance. guarantee or promise will be fulfilled Materially misleads about the prices at which such goods or services are available in the market. Makes to the public a representation in the form that purports to be• warranty or guarantee of the goods or services. composition. or the usefulness of. 2. for a reasonable period or reasonable quantity. conciliators may note relevant issues in the RTA database. services or trade of another person. accessories. grade.MBA 111 SEMESTER                        contact and interview disputing parties over the telephone provide information about the Residential Tenancies and Rooming Accommodation Act 2008 assist the parties in the exchange of information including relevant documents such as receipts facilitate the resolution of disputes by sharing offers and suggesting options provide a notice of unresolved dispute to enable an application to the tribunal for a hearing where a dispute remains unresolved. Falsely suggests any re-built.Summer 2011. for this purpose means: the price stated in the advertisement in such manner as suggests that it is lesser than the ordinary price. The 'bargain price'. These notes will not be referred to if the dispute progresses to the tribunal. • a promise to replace. reconditioned or old goods as new goods. Represents that the goods or services have sponsorship. Conciliators do not: make decisions for disputing parties make judgements about who is right. As part of the process. style or model. that is not based on an adequate or proper test. any goods or services. Makes a false or misleading representation concerning the need for. uses or benefits which they do not have. efficacy or length of life of the goods. quantity or grade.        1. Gives any warranty or guarantee of the performance. characteristics.

design. Q5. as are necessary to prevent or reduce the risk of injury to the person using such goods. commonly referred to as "electronic commerce". Many legal provisions assume paper based records and documents and signature on paper.Non-Compliance Of Prescribed Standards Any sale or supply of goods. Q4. in relation to their performance. Computer has many advantages in e-commerce. It is difficult to shift business from paper to electronic form due to two legal hurdles . the purpose of Act is (a) to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication. with an intention to raise the cost of those or other similar goods or services. prizes or other items along with the goods when the real intention is different. composition. transmit and store information is increasing. shall be an unfair trade practice. 5. 4. when in fact the price is wholly or partly covered by the price of the article sold. for use by consumers. Destruction. Any practice that permits the hoarding or destruction of goods. or Creating impression that something is being offered free alongwith the goods.Hoarding. What does the Information Technology Act enable. The General Assembly of the United Nations by resolution dated the 30th January. finishing or packing.(a) Requirements as to writing and (b) Signature for legal recognition. 1997 adopted the Model Law on Electronic Commerce and recommended that all States should give favourable consideration to the Model Law when they enact or revise their laws.571010391 .Summer 2011. 6. consumer or a registered consumer association. shall amount to an unfair trade practice. or Upon reference made to it by the Central Government or State Government Upon an application to it by the Director General or Upon its own knowledge or information. Etc. or refusal to sell the goods or provide any services.MBA 111 SEMESTER        3.Free Gifts Offer And Prize Scheme The unfair trade practices under this category are: Offering any gifts. Can be revoked at any time prior to acceptance. Must be distinguished from an invitation to treat which is where a party communicates that it is prepared to enter negotiations with a view to forming a contract. with real intention to promote sales or business. contents. What are essentials of a valid offer? Must be communicated. knowing or having reason to believe that the goods do not comply with the standards prescribed by some competent authority. The Information Technology Act has been passed to give effect to the UN resolution and to promote efficient delivery of Government services by means of reliable electronic records. construction. Q6. or Offering some prizes to the buyers by the conduct of any contest. which involve the use of                MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO.Inquiry Into Unfair Trade Practices The Commission may inquire into any unfair trade practice: Upon receiving a complaint from any trade association. Use of computers to create. lottery or game of chance or skill. Find out a case where a person appealed under the Consumer protection Act and won. New communication systems and digital technology have made dramatic changes in way of transacting business. As per preamble to the Act.

including any other testamentary disposition by whatever name called (e) any contract for the sale or conveyance of immovable property or any interest in such property (f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette. except cheque (b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act (c) a trust as defined in section 3 of the Indian Trusts Act(d) a will as defined in section 2(h) of the Indian Succession Act. "Affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature.. Digital signature .10.Any subscriber may authenticate an electronic record by affixing his digital signature..2000. ―Subscriber" means a person in whose name the Digital Signature Certificate is issued. including recognition of foreign Certifying Authorities * Controller to act as repository of all digital signature certificates * Certifying authorities to get License to issue digital signature certificates * Various types of computer crimes defined and stringent penalties provided under the Act * Appointment of Adjudicating Officer for holding inquiries under the Act * Establishment of Cyber Appellate Tribunal under the Act * Appeal from order of Adjudicating Officer to Cyber Appellate Tribunal and not to any Civil Court * Appeal from order of Cyber Appellate Tribunal to High Court * Act to apply for offences or contraventions committed outside India * Network service providers not to be liable in certain cases * Power of police officers and other officers to enter into any public place and search and arrest without warrant * Constitution of Cyber Regulations Advisory Committee who will advice the Central Government and Controller What does IT Act enable? . The Act does not apply to — (a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act. .The Act provides for .Broadly. documents which are required to be stamped are kept out of the provisions of the Act. [section 3(1)]. forgery or falsification in Electronic Commerce and electronic transaction.Summer 2011. "Digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3. [section 2(1)(d)]. .MBA 111 SEMESTER alternatives to paper-based methods of communication and storage of information and (b) to facilitate electronic filing of documents with the Government agencies. [section 2(1)(p)]. "Digital Signature Certificate" means a Digital Signature Certificate issued under section 35(4) [section 2(1)(q)].The authentication of the electronic record shall be effected by the MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. Authentication of records .571010391 . digital signature satisfy the requirement * Uniformity of rules.The Act came into effect on 17. [section 2(1)(zg)]. Overview of the Act . international alteration of electronic records fraud.The Information Technology Act enables:* Legal recognition to Electronic Transaction / Record * Facilitate Electronic Communication by means of reliable electronic record * Acceptance of contract expressed by electronic means * Facilitate Electronic Commerce and Electronic Data interchange * Electronic Governance * Facilitate electronic filing of documents * Retention of documents in electronic form * Where the law requires the signature. forged electronic records.* Electronic contracts will be legally valid * Legal recognition of digital signatures * Digital signature to be effected by use of asymmetric crypto system and hash function * Security procedure for electronic records and digital signature * Appointment of Certifying Authorities and Controller of Certifying Authorities. regulations and standards regarding the authentication and integrity of electronic records or documents * Publication of official gazette in the electronic form * Interception of any message transmitted in the electronic or encrypted form * Prevent Computer Crime.

Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form. at the time it was affixed. supervised and controlled by ‗Controller of Certifying Authorities‘ MB0051:LEGAL ASPECTS OF BUSINESS ROLL NO. The idea is similar to locker key in a bank.The digital signature will be certified by ‗Certifying Authority‘. . [section 3(3)]. shall. Verification of digital signature . . The ‗certified authority‘ will be licensed. it can be verified that a digital signature. then. electric record or electronic return is acceptable. .Soon. The private key and the public key are unique to the subscriber and constitute a functioning key pair.Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person then.. mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly."Signed". [section 4]. with its grammatical variations and cognate expressions. Secure digital signature .then such digital signature shall be deemed to be a secure digital signature.Section 8 makes it clear that no department or ministry can be compelled to accept application. with reference to a person.Any person by the use of a public key of the subscriber can verify the electronic record. [section 15]. You have your ‗private key‘ while bank manager has ‗public key‘. return or any communication in electronic form.If. if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government. notwithstanding anything contained in such law. Certifying digital signature . Electronic records acceptable unless specific provision to contrary .571010391 . and (b) accessible so as to be usable for a subsequent reference.(a) unique to the subscriber affixing it (b) capable of identifying such subscriber (c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated. Legal recognition of digital signatures . The locker does not open unless both the keys come together match. [section 3(2)].Unless there is specific provision in law to contrary. such requirement shall be deemed to have been satisfied..Summer 2011. notwithstanding anything contained in such law.MBA 111 SEMESTER use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. such requirement shall be deemed to have been satisfied if such information or matter is . Department or ministry cannot be compelled to accept electronic record . was . . by application of a security procedure agreed to by the parties concerned. [section 3(4)]. [section 5].(a) rendered or made available in an electronic form. it will be possible to submit applications.. income tax returns and other returns through internet.

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