Topic > Contract Analysis Misrepresentation - 836

Section 142 of the Indian Contracts Act provides that security obtained by misrepresentation, is invalid: any security obtained by misrepresentation made by the creditor, or with his knowledge and your consent, regarding a material part of the transaction, is invalid. Section 143 of the Indian Contracts Act states that security obtained by concealment is invalid. Any security obtained by the creditor by maintaining silence about material circumstances is invalid. Under English law, It is settled that the contract of suretyship is a contract in which there is no universal duty of disclosure", it is not like a contract of insurance, capable of being voided by the mere non-disclosure of any material fact, however the surety is entitled to know everything that will tell him what the transaction is for which he is liable, and he will be released if there is an active misrepresentation on the matter on the part of the creditor, or a silence equivalent, in the circumstances, to a false declaration. Ordinary guarantee contracts are not among those that require uberrima fides on the part of the creditor towards the surety. A guarantee contract, like any other contract, is susceptible to being canceled if it includes a material falsification of an existing fact. even if made in good faith. The misrepresentation may consist in the direct statement of a fact which is not a fact, or it may consist in a statement by the creditor telling only that part of the truth, which is probably misleading, or in a statement made by the creditor believing it to be true, but subsequently discovering that it is not true, or that it has subsequently become false to his knowledge. A warranty caused by misrepresentation may be void if the misrepresentation was... halfway through the document... incipient, disclosed or undisclosed, but still poses as an agent. He cannot demand performance from the third party if he actually acted on his own behalf and not as an agent. This section is attracted when there is no named entity. If a person purporting to act as agent for an undisclosed principal enters into a contract with another, and in fact there is no undisclosed principal, this section applies and he or she may not sue against the contract. Here the disputes are between two persons, one of whom is a misrepresented agent of a third party, it does not apply when the dispute is between the principal and his agent. This section does not void the contract. It provides only that the alleged agent cannot demand its performance. Therefore, being enforceable at the request of one of the parties, and not of the other, it is a voidable contract.