The elements of fraudulent misrepresentation under English law with some indication of Shi'i Ithna Ashari law
This work will cover in detail the issues of representation, falsity, factuality, materiality, fraud, inducement and damage. It will also examine other important issues such as exceptions to the rule requiring factuality, exceptions to the rule requiring materiality (plus the general trend of the current law), the rationale behind the factuality rule, the rationale behind the materiality rule, different ways of making a misrepresentation, partial misrepresentation, gross negligence not necessarily amounting to fraud, the theory of continuity of representation, burden of proof, the need for not easing the proof of fraud, the need for taking a harsh position against fraud (after it has been clearly proved), irrelevancy of the defendant's motive to the charge of fraud, irrelevancy of the representee being negligent to the charge of fraud, the law requiring less from the plaintiff in fraud cases, the logic behind the inducement requirement, causation test, the link between materiality and inducement, the representation not being required to be the sole cause of inducement, recoverable damages in a deceit action, the tortious measure of damages, the general trend of the present law as to the recoverable damages in a deceit action, the impact of both practical considerations and logic on the law of misrepresentation, reconciliation between English law and Shi'i law whenever they look different. This research has resulted, inter alia, in the following. First, in English law, the elements of fraudulent misrepresentation are: (1) falsity; (2) communication; (3) dishonest belief; (4) inducement; (5) damage. And, in Shi'i law, they are: (1) falsity; (2) communication; (3) dishonest belief; (4) materiality; (5) damage. Second, though in relation to the elements required by each system, there are some differences between the two, these differences are incapable of causing a considerable difference between the two systems. Third, both systems have taken a harsh position against fraud. Fourth, English law (compared to Shi'i law) has taken a harsher position against the fraudulent misrepresentor, and Shi'i law (compared to English law) has given more security to the transaction. Anyway, as long as the position of both systems are based on taking a harsh position against the fraud, the fact that one system, unlike the other, has taken a harsher position does not cause a considerable difference. Finally, this thesis has shown that the positions taken by Shi'i law find similarities in corresponding positions taken by the modern law (i.e. English law).