FRAUD IN RELATION TO MARRIAGE. 519 relation to Marriage is, to some extent, an exception to the general Fraud in rule: but marriage, though including a contract, is so marriage. much more than a contract that the exception is hardly a real one. It has been said that "unless the party imposed upon has been deceived as to the person and thus has given no consent at all, [or is otherwise incapable of giving an intelligent consent], there is no degree of deception which can avail to set aside a contract of marriage knowingly made" (y). At any rate a marriage is not rendered invalid by the parties or one of them having practised a fraud on the persons who performed the ceremony. Where a marriage had been celebrated in due form by Roman ecclesiastics at Rome between two Protestants, who had previously made a formal abjuration (the marriage not being otherwise possible by the law of the place as it then was), it was held immaterial whether the abjuration had been sincere or not, though as to the woman there was strong evidence to show that it was not (z). of third persons We may observe in this place that when the consent of Consent a third party is required to give complete effect to a transby fraud. action between others, that consent may be voidable if obtained procured by fraud, and the same rules are applied, so far as applicable, which determine the like questions as between contracting parties. Thus where the approval of the directors is necessary for the transfer of shares in a company, a false description of the transferee's condition, such as naming him "gentleman" when he is a servant or messenger, or a false statement of a consideration paid by him for the shares, when in truth he paid nothing or was dings to raise the price, the sale is The and Divorce, §§ 165-206. un (z) Swift v. Kelly, 3 Knapp, 257. paid to execute the transfer, is a fraud upon the directors, the object being to mislead them by the false suggestion of a real purchase of the shares by a man of independent position; and on a winding-up the Court will replace the transferor's name on the register for the purpose of making him a contributory (a). (a) Ex parte Kintrea, 5 Ch. 95, Payne's ca. and Williams' ca. 9 Eq. 223; Lindley, 2. 1436. CHAPTER X. THE RIGHT OF RESCISSION. We have now to examine a class of conditions which apply Examinaindifferently, or very nearly so, to cases of simple mis- tion of questions representation (that is, where the truth of a representa- on rescistion is in any way of the essence of a contract) and cases of voidable fraud. Some of them, indeed, extend to all contracts which contracts. are or have become voidable for any cause whatever. The questions to be dealt with may be stated as follows: itself to give a right to relief to the party misled? What is the extent of that right, and within what bounds can it be exercised? 1. As to the representation itself. sion of tation A. It must (except, perhaps, in a case of actual fraud) be As to the a representation of fact, as distinguished on the one hand represenfrom matter of law, and on the other hand from a matter relied on of mere opinion or intention. for rescinding a contract. It must be of matter of fact, not of law (but qu. as to As to the first branch of the distinction, there is authority at common law that a misrepresentation of the legal effect of an instrument by one of the parties to it does not enable the other to avoid it (a). And in equity there is no reason to suppose that the rule is otherwise, fraud). though the authorities only go to this extent, that no independent liability can arise from a misrepresentation of what is purely matter of law (b). But this probably does (a) Lewis v. Jones, 4 B. & C. 506. Not so if the actual contents or nature of the instrument are misrepresented, as we saw in Ch. VIII. (b) Rashdall v. Ford, 2 Eq. 750; Beattie v. Lord Ebury, 7 Ch. 777, 802, L. R. 7 H. L. 102, 130 (the House of Lords held there was no misrepresentation at all). deliberate And not of mere motive or intention. not apply to a deliberately fraudulent mis-statement of the law (c). The circumstances and the position of the parties may well be such as to make it not imprudent or unreasonable for the person to whom the statement was made to rely on the knowledge of the person making it: and it would certainly work injustice if it were held necessary to apply to such a case the maxim that every one is presumed to know the law. As to the second branch, we must put aside the cases already mentioned in which the substance of the fraud is not misrepresentation, but a wrongful intention going to the whole matter of the contract. Apart from these it appears to be the rule that a false representation of motive or intention, not amounting to or including an assertion of existing facts, is inoperative. "It is always necessary to distinguish, when an alleged ground of false representation is set up, between a representation of an existing fact which is untrue and a promise to do something in future " (d). On this ground was put the decision in Vernon v. Keys (e), where the defendant bought a business on behalf of a partnership firm. The price was fixed at 4,5007. on his statement that his partners would not give more: a statement afterwards shown to be false by the fact that he charged them in account with a greater price and kept the resulting difference in their shares of the purchase-money for himself. It was held that the vendor could not maintain an action of deceit, as the statement amounted only to giving a false reason for not offering a higher price. The case also illustrates the principle that collateral fraud practised by or against a third person does not avoid a contract. Here there was fraud, and of a gross kind, as (c) Hirschfeld v. London, Brighton, & South Coast Ry. Co., 2 Q. B. D. 1; Bowen, L. J. in West London Commercial Bank v. Kitson, 13 Q. B. D. at p. 363. (d) Mellish, L. J., Ex parte Burrell, 1 Ch. D. at p. 552. (e) 12 East 632, in Ex. Ch. 4 Taunt. 488. The language used in the Ex. Ch. to the effect that the buyer's liberty must be co-exten. sive with the seller's, which is to "tell every falsehood he can to induce a buyer to purchase,' is of course not to be literally accepted. between the buyer and his partners; but we must dismiss this from consideration in order to form a correct estimate of the decision as between the buyer and seller. It must be judged of as if the buyer had communicated the whole thing to his partners and charged them only with the price really given. Still the decision is difficult to accept. For the buyer was the agent of the firm, and in substance made a false statement of a distinct matter of fact touching the extent of his authority, though it was no doubt a matter as to which he was not bound to make any statement or to answer any questions. And it has been held in the Privy Council that it is clearly fraudulent for A. and B. to combine to sell property in B.'s name, B. not being in truth the owner but only an intermediate agent, and the nominal price not being the real price to be paid to the owner A., but including a commission to be retained by B. (f). This seems to shake the authority of Vernon v. Keys, though it cannot actually overrule the decision (g). This difficulty, however, affects only the particular application of the doctrine on which the Court proceeded. ments of It needs no authority to show that a statement of what Stateis merely matter of opinion cannot bind the person making matter of it as if he had warranted its correctness. And authority opinion. has gone so far as to say that if a man makes assertions, as of matter of fact within his own knowledge, concerning that which is by its nature only matter of more or less probable repute and opinion, he is not legally answerable as for a deceit if the assertion turns out to be false (h). (f) Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, 243. (g) The decisions of the Judicial Committee, though they carry great weight, are not binding in English Courts: see Leask v. Scott, 2 Q. B. D. 376, where the C. A. refused to follow the Judicial Committee, also Smith v. Brown, L. R. 6 Q. B. at P. 736. (h) Haycraft v. Creasy, 2 East 92. Here the defendant had stated, as a fact within his own knowledge, that a person was solvent who ap peared to have ample means, but |