Lloyd's Maritime and Commercial Law Quarterly

Non-disclosure and the Misrepresentation Act 1967: a new framework

Fred Halbhuber *

It has become generally accepted that use of the phrase “misrepresentation … made” in the Misrepresentation Act 1967 excludes from the scope of s.2(1) certain cases of misrepresentation by non-disclosure. This article challenges this orthodox interpretation. It will be argued that, rather than importing a narrow definition of the word “made”, the applicability of s.2(1) in cases of misrepresentation by non-disclosure can, and should, be delimited by reference to the requirements of the tort of deceit. This alternative approach introduces much needed certainty to the scope of s.2(1); avoids an undesirable disconnect between the scope of s.2(1) and the tort of deceit; and unburdens the other sections of the 1967 Act from the restrictive and unintended effects of the orthodox interpretation.


English law recognises no general duty of disclosure in pre-contractual negotiations.1 Mere “[t]acit acquiescence in another’s self-deception” does not of itself constitute a misrepresentation.2 In some cases, however, courts have recognised that a failure to speak may be just as deserving of sanction as a positive misstatement. In these situations, the law carves out an exception to the general rule and imposes on one or both of the contracting parties a duty to disclose material information to the other.
This article considers how the Misrepresentation Act 1967 (“MA 1967”) applies to such cases of pre-contractual misrepresentation by non-disclosure. In particular, this article analyses whether—and, if so, when—cases of misrepresentation by non-disclosure give rise to a claim in damages under MA 1967, s.2(1). The leading authority on this

Non-disclosure and the Misrepresentation Act 1967


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