Form or substance? Excluding liability for misrepresentation

• Main Author: KOH, Zhi Jia
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2021
• Subjects: Courts; International Law
• Online Access: https://ink.library.smu.edu.sg/sljlexicon/6; https://ink.library.smu.edu.sg/context/sljlexicon/article/1003/viewcontent/form_or_substance.pdf
• Institution: Singapore Management University

Exclusion of liability for misrepresentation has long been controversial. There are many ways in which one could go about doing it, namely, through express exclusion of liability clauses, entire agreement clauses, non-reliance clauses, and maybe even basis clauses. The key question is whether such clauses are subject to s 3 of the Misrepresentation Act, which prevents a contracting party from escaping liability when it is unreasonable to do so. Notably, English jurisprudence has taken the view that any term that excludes liability for misrepresentation in effect would be subject to the test of reasonableness. Singapore appears to be moving in the same direction, and this paper explores why Singapore should do so. The bottom line is that a contracting party should not be given full immunity for misrepresentation when the other contracting party is unsavvy and/or unwary.