W – Warranty or representation
25/3/13
DEUTSCHE BANK (SUISSE) SA v KHAN [2013] EWHC 482 (Comm)
A bank had acted reasonably in rejecting a valuation of security as unsatisfactory in view of the hope value included which was uncertain and speculative. A satisfactory valuation was a condition precedent to the obligation to make facilities available, so the bank had been entitled to not to make advances on the terms of the facility and to make partial advances on different terms. Claims against the bank of misrepresentation and mistake failed on the facts. The bank had not known of any mistake by the defendants, had not given any warranty as to returns available from investment products sold with the facility, and had not failed to advise of the adverse consequences of selling the products prior to maturity. Set-off of counterclaims was excluded by the facility agreement and such claims could not be a defence to the bank’s claim for possession of security. The exclusion of set-off was not unreasonable contrary to the Unfair Contract Terms Act 1977 nor did it, or a provision for payment of default interest, cause the relationship between the parties to be unfair within s 140A Consumer Credit Act 1974. The agreed terms did not create a significant imbalance within the Unfair Terms in Consumer Contracts Regs 1999.
30/11/12
SYCAMORE BIDCO LTD v BRESLIN [2012] EWHC 3443 (Ch)
In a share sale agreement which drew distinctions between warranties and representations, warranties did not amount to representations which could give rise to an action for misrepresentation.