The statement must be one of fact; merely delivering an opinion will not create an actionable misrepresentation.

There are some cases in which what looks like a statement of opinion will be considered by the courts to be a statement of fact. An example is where one party falsely states their opinion. This position was illustrated in the case of Edgington v Fritzmaurice (1885).

Also, where circumstances are such that the party stating an opinion appears to be in possession of facts upon which the opinion can reasonably be based, that party is effectively stating that he or she is in possession of such facts, and if this is not the case, the statement will be a misrepresentation.

To be an actionable misrepresentation, a statement must refer to an existing fact, not something in the future. The exception is a statement of intention, since this comes under the rule that a statement about the state of one’s mind is a statement of fact: saying you intend to do something in the future implies that the intention already exists.

Mere ‘sales talk’ used to recommend a product to a potential customer will not amount to a statement of existing fact. This was the position held by the courts in the case of Dimmock v Hallet (1866).

Statements of the law are not sufficient to amount to an actionable misrepresentation. In practice, it is not always clear when a statement is one as to law or as to fact.

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