Report No. 13
43. Section 18.-
Pollock and Mulla,1 have offered strong criticism of the language of this section and have described it as one of the least satisfactory in point of form. They have observed that in sub-section (1) the use of the word 'warranted' in a sense (whatever that sense may precisely be) unknown to the law and in a subject-matter where the words 'warranted' and 'condition' have already caused quite enough trouble, is elementary fault. The learned authors think that sub-section (2) is obscure and apparently useless and that sub-section (3) seems to involve confusion between contracts voidable because consent was obtained by misrepresentation and transactions which could have no legal effect, except possibly by way of estoppel because there was no real consent at all. For the reasons set out hereunder we do not think that the language of the section should be changed.
As an illustration of the use of the word 'warranted', Pollock and Mulla,2 cited the decision of Maclean, C.J., in Mohan Lall v. Gungaji Cotton Mills Co., 4 CWN 369 (388-389). They illustrated the meaning of the expression 'positive assertion' by reference to a Punjab case.3 They have also quoted cases arising under sub-sections (2) and (3). It is clear that no difficulty has arisen in the application of the section so far. The grammatical meaning of the word 'warranted', viz., 'justified', seems to be fairly clear and we do not think that in the context this word is likely to be interpreted in the sense of 'guaranteed'. Reference to English authorities on the subject of innocent misrepresentation entitling the party whose consent was obtained by such misrepresentation is not helpful. Anson4 has remarked that the reports contained few instances of contract held to be voidable for innocent misrepresentation.
We do not, accordingly, recommend any change in this section.
1. Pollock & Mulla; Op. Cit., p. 127.
2. Pollock & Mulla; Op. Cit., pp. 129-130.
3. Currie v. Rennick, 1836 PR No. 41
4. Anson; Op. Cit., p. 187.