The rules of misrepresentation have been “developed over the years without any real attempt by judges or Parliament to devise a unified theory of misrepresentation”.1 This inevitably leads to difficulties. One issue that has recently troubled the courts is whether the claimant needs to believe the false representation made by the defendant. If the claimant does not believe that the representation made is true, then the claimant is not mistaken about the veracity of that representation. Nevertheless, in Zurich Insurance Co Plc v Hayward,2 the Supreme Court held that even in such circumstances a contract could be rescinded for misrepresentation.

In a recent article in this Quarterly, Elise Bant has discussed some of the broader consequences that result from driving a wedge between fraud and mistake.3 As she recognises, the implications of the decision in Zurich are potentially very serious and wide-ranging. It is therefore both important and timely to subject the decision of the Supreme Court itself to rigorous examination. We consider that Zurich is an unwelcome relaxation of the requirements for a claim to rescind a contract for misrepresentation. As a matter of policy, it undermines the certainty and the security which contractual rights are supposed to provide. The Supreme Court’s decision is also to be criticised in its approach to precedent, since the Justices assumed, without explanation, that the authorities on this point from the tort of deceit were equally applicable to a claim to set aside a contract for