8.9.7 Distinguishing between the different degrees of `fundamental′ mistakes that are operative at common law and in equity is a difficult task. Nevertheless, the Singapore Court of Appeal′s recent observations appear to favour the retention of this two-prong approach (Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502). This may be contrasted with the position in England, where the more flexible equitable rule appears to have been abolished (Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679).
对分别在普通法和衡平法上的“根本误解”的不同程度加以区分是一件很难的任务。虽然如此，新加坡的上诉法庭（Court of Appeals）最近的一些判例观点仍然坚持维持这个二元模式。见Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502。这与英国法现在的立场已有显著不同，因为在英国衡平法规则已被废除。见Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679。
Unilateral Mistake单方误解
8.9.8 A contract may also be affected by a `unilateral mistake′, that is when only one party is acting under a mistake. For purposes of discussion, it is convenient to distinguish between the following two cases: (a) where the mistake relates to the identity of a contracting party, and (b) those where the mistake relates to a term of the contract.
合同也可能被“单方误解”影响。为研讨方便之目的，应对以下两类情形加以区分：（a）误解涉及到合同一方的身份；及（b）误解涉及到合同条款。
Unilateral Mistake as to Identity关于身份的单方误解
8.9.9 First, unilateral mistakes as to identity typically involve cases where one party′s consent to an agreement is procured by deception. If A agrees to sell his car to B (who has deceived A into believing that B is C), the contract is affected by A′s unilateral mistake as to B′s true identity provided that it is clear that B′s identity is material, ie an important factor which induced the contract. As between A and B, it is not essential to determine whether such a mistake renders the contract void or voidable, since A, the mistaken party, would have the right to set aside the contract in either case. However, the distinction becomes critical if B has sold the car to T (an innocent third party who acquires the car without notice of B′s deception ) before A discovers the fraud. If the mistake has the effect of rendering the contract between A and B void, A will be able to recover the car from T because B, not having acquired any property right in the car, has nothing to sell to T. In the converse situation where the contract between A and B is merely voidable, B would have acquired property rights in the car, which he could subsequently transfer to T. A is therefore unable to recover against T in this instance.
首先，关于身份识别的单方误解通常涉及到一方的对协议的同意是被欺骗所引致的。如A同意把他的车卖给B（而B实际上是通过欺骗使A认为B就是C），如情形很清楚B的身份事关重大（例如是诱使合同成立的重要因素），则A关于B的真实身份的单方误解会影响合同。在A和B之间，确定误解是合同无效还是可撤销并不关键，因为在任何一种情况下，A，作为有误解认知的一方，都有权使合同归于终止。然而，如果B在欺诈被揭示之前已经把车卖给了T（T是不知B的欺诈行为的善意第三方），这个区别就很关键了。如果误解的效力是使得A和B之间的合同归于无效，A就能够从T手里去回车辆，这是因为B自己没有取得车辆的任何财产权，因而就没有什么东西能卖给T。如果情形只是A和B之间的合同是可撤销的，B已经获得了车辆的财产权，他可以随后将之转移给T，A也因此不能从T出取回车辆。
8.9.10 Disputes involving mistakes as to identity are invariably `hard′ cases that are not
amenable to simple analyses because they often require the court to prefer one of two innocent parties. Nevertheless, it may be observed that the general approach in these cases requires examination of the facts to ascertain whether there is in fact an agreement between the mistaken party and the (fraudulent) counter party. Thus, if A intends to sell his car only to C, then no agreement is reached between A and B when B attempts to purchase the car by pretending to be C. Such intention may, for instance, be inferred from the fact that A′s offer is expressly addressed to C, or where there is a written contract purportedly made between A and C (although fraudulently signed by B on C′s behalf). However, where A and B transact face-to-face, there is a presumption that they intend to deal with the physical person present, in which case A is presumed to have intended to contract with B, the fraudster. Such a presumption may, however, be rebutted by clear evidence to the contrary.
关于身份识别的争端不可避免地属于艰难的案例，不是简单的分析所能言说的，这是因为这种争端通常需要法庭优待两个无辜方中的一方。尽管如此，可以认为解决此类案件的总的进路要求审视案件事实以确定在有误解认知的一方和实施了欺诈的另一方是否事实上存在一个协议。因此，如果A意图将他的车卖给C，那么当B试图假扮C而购得该车时，在A和B之间就没有协议。这种意图也可以-比如说-从A的要约是明示发给C的这一事实中，或者从从一个本意是成立于A和B之间的书面合同（而B欺诈性地代C签了名）推定出来。然而，当A和B做面对面的交易时，就存在一个假定，即他们意图与出现在现场的人交易，在这种情形下A被推定为有意图与欺诈者B订立合同。但是这个假定可以被清楚的相反证据所推翻。
Unilateral Mistake as to a Term关于条款的单边误解
8.9.11 Secondly, there is the category of unilateral mistakes as to terms of the contract. If A enters into a contract under a misapprehension as to a particular important term (other than the identity of the other party, B), and the mistake is known to B, such a mistake may render the contract void at common law. The Singapore Court of Appeal has recently clarified (in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502) that this common law doctrine is confined to cases where the non-mistaken party, B, has actual knowledge of A′s mistake. In addition, if a case does not fall within the ambit of the common law doctrine (because, for instance, it has not been established that B has actual knowledge of A′s mistake), the court may nevertheless exercise its equitable power to set the contract aside if B is guilty of unconscionable conduct. This may arise where B suspects that A is labouring under a mistake but consciously omits to disabuse A of his error.
第二类是关于条款的单边误解。如果A基于对某个重要条款（并非另一方当事人B的身份）的误解，而B知晓此项误解，在普通法上该误解可以使合同归于无效。新加坡上诉法院最近澄清，上述普通法原则只适用于B（作为无误解认识的一方）实际上知晓A有了误解的情形。此外在某个案件不属于上述普通法涵盖的范围的情况下（比如因为不能证明B实际上知晓A有误解），如果B卷入显失公平行为，法庭可以行使它在衡平法上的权力解除合同。见Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502。这种情形可产生于B相信A正在产生误解但却有意不去纠正A的误解。
Documents Mistakenly Signed因误解而签字的文件
8.9.12 Generally, a person of full age and understanding who has signed a written contract is bound by it even if he or she has not read it. Exceptionally, a signatory to a contract may be able to set it aside if it is fundamentally or radically different from what the signatory believed it to be, as may occur if the signatory′s understanding is limited by some innate incapacity, or when
he or she has been tricked into signing it. This defence cannot, however, be invoked by a person who has been negligent in signing the document.
总的来说，如果一方在书面合同上签名他就受其约束，即使他/她并没有读过合同。例外情形下，如果合同从根本上和极大地区别于签字人当初所确信的合同内容，比如签字人的理解被某些固有的能力不足所局限，或者他/她因被设陷阱而签字等，签字人可以将合同终止。这一抗辩不能被因疏忽而签约的人所援引。
Documents Mistakenly Recorded因误解而记载的文件
8.9.13 If a written contract does not, by reason of a mistake, accurately record the agreement between the parties, the court may rectify the contract so as to give effect to the parties′ true intention. Originally, the remedy of rectification was only available in cases where the mistake is shared by both parties, but was subsequently extended to situations where only one party is mistaken, and such mistake is known to the other party.
如果书面合同由于误解的原因没有准确记载当事方达成的协议，法庭可以修正合同以给与当事人的真实意图以法律效力。最初，司法修正这一救济措施只适用于双方都有误解的情形，但后来它被延伸到只有单方有误解且误解已被另一方知晓的情形。
SECTION 10 MISREPRESENTATION虚假陈述
Representation陈述
8.10.1 A contract which is induced by a misrepresentation may be set aside, and may give rise to an action for damages. A misrepresentation occurs when one party to a contract makes a false statement of fact to the other contracting party which induces the latter to enter into the contract. To be operative, the false representation must relate to a past or present fact. It follows that a vague or exaggerated statement that is in the nature of a `puff′ does not suffice. Generally, a statement of a party′s intention or opinion is also not a sufficient ground for relief. However, if the representor does not honestly hold such intention or opinion, there is a misrepresentation of fact as to the representor′s state of mind. A statement of opinion may also be actionable if it is made by a person who professes to have special skill or knowledge in the matter stated. Statements of law appear still to be excluded from the ambit of operative representations, although the correctness of this position must now be doubted in light of the abolition of this distinction in the context of mistakes (see [Chapter 19 on Restitution - Mistaken Payments]). 因被虚假陈述引诱而订立的合同可被结束，并可导致损害赔偿之诉。为发生效能，假的陈述必须是关于一个过去或现在的事实。因此一个含糊的或夸张性的陈述属于言过其实的吹嘘，不足以成为虚假陈述。一般来讲，因为一项对一方意图或意见的陈述也不足以寻求法律救济的理由。然而，如果陈述者没有诚实地持有此种意图或想法，可以说这是对他的心理状态这一事实的虚假陈述。对于意见的陈述如果是由一个自称具有某一事项的专业技能或知识的人作出，该陈述即可引起控诉。对法律的表述仍被排除在可发生虚假陈述效能的陈述之外。对此能否作出更正，尚是个值得怀疑的问题，特别是鉴于在误解的情形下这两者之间的区别已被废除。
8.10.2 A representation may be express, or it may be inferred from the representor′s conduct. On its own, silence or non-disclosure does not usually constitute a representation. There are, however, exceptions to this general rule. If a party makes a positive but incomplete disclosure, the omitted disclosure may amount to a misrepresentation if it has the effect of distorting the
truth of the information disclosed. Similarly, a failure to correct an earlier (and continuing) representation that was true at the time it was made but which has subsequently become incorrect is actionable. A failure to disclose material facts whilst negotiating contracts uberrimae fidei, such as insurance contracts, would also give rise to an action for misrepresentation.
陈述可以明示作出，或可从陈述人的行为中推定出来。陈述或者不批露本身通常不构成陈述，对对此也有例外。如一方作出了积极的但又不完全的披露，被遗漏的信息如果对已披露的信息能造成扭曲，就构成虚假陈述。相似地，在其先前作出时尚为准确的（持续）陈述如果后来变得不正确，对其不作出更正就可能引致控诉。如果是协商一些“最大诚信”(uberrimae fidei) 合同如保险合同，失于披露重大事实就会引致虚假陈述之诉。
8.10.3 Generally, a misrepresentation must also be material, in the sense that it relates to a matter which would influence a reasonable person′s decision whether to enter into the contract. If a representation is ambiguous and may be interpreted in two (or more) ways, of which one is true and the other false, it is not a misrepresentation unless the representor has intended it to be understood in the sense that is false.
总的来说，虚假陈述也必须是重大的，这意味着它涉及到一个能够影响一个通情达理的人决定是否签订合同的的事项。一果一项陈述含糊不清，可作两种（或多种）解释，但只有一种解释是真实的而其他的都是虚假的，它就不是虚假陈述，除非陈述者意图使其被理解为虚假的那种含义。
Inducement引诱
8.10.4 Misrepresentation is a ground for relief only where it has induced a contract. Clearly, if a person is unaware of the representation, or knows that it is untrue, or does not believe it to be true, he or she cannot reasonably have relied on, or be induced by, the representation to enter into the contract. Reliance may also be negated if the representee has independently verified the truth of the representation, although the failure to verify (when the opportunity to do so is available) is not in itself a bar to relief. If the misrepresentation has in fact induced the representee to enter into the contract, it does not matter that it is not the sole inducing factor. The persons who may rely on a representation are not confined to those directly addressed by the representor, but include any person whom the representor intends to reach and influence, even if such a person learns of the representation indirectly from a third party.
如果虚假陈述诱使了合同的成立，它就可以成为寻求法律救济的理由。清楚的是，如果某人不知悉该陈述，或者知道它不是真实的，或者不相信它是真实的，他或她就不能合理地信赖该陈述或被其引诱而订立合同。如果被陈述人已经独立验证过陈述的真实性，这种信赖也可被否定，尽管（在有机会时）疏于验证本身并不是寻求救济的障碍。如果虚假陈述确实诱使被陈述人订立合同，它是否是唯一的诱导因素就不重要了。信赖陈述的人并不限于陈述人的直接表述对象，还包括任何陈述人意图致达和影响的人，即使该人是通过第三人间接地获知陈述。
Rescission解除合同
8.10.5 Once it is established that a contract has been induced by a misrepresentation (whether innocent, negligent or fraudulent), the party induced may elect to rescind (ie set it aside) or affirm it. The effect of rescission is to release the parties from their contractual obligations, and to restore the parties to their respective positions prior to the making of the contract. The right to rescind will, however, be lost if: (a) the induced party has affirmed the contract; (b) innocent third parties have acquired (for value) rights in the subject matter of the contract; (c) it is no
longer possible to restore the parties to their respective prior positions; and (d) (except in the case of fraud) an inordinate period of time has lapsed. It should also be noted that the court may, pursuant to s 2(2) of the Misrepresentation Act (Cap 390, 1994 Rev Ed), award damages in substitution for the right to rescind.
一旦证明合同是因虚假陈述诱导而成立（不管是无辜、过失还是欺诈），被诱导的一方可以选择解除或确认合同。解除合同的后果是当事各方不再受合同义务约束，并使各方恢复到合同订立以前的各自原状。但是下列情况下解除合同的权利不再存在：（a）被诱导的一方已经确认了合同；（b）无辜的第三方已经（付出对价）取得了对合同标的的权利；（c）已经不可能使当事各方恢复原状；以及（d）（除欺诈情况外）过于长的一段时间已经过去。还应该提到法庭可以根据《虚假陈述法》（Cap390, 1994修订）第2（2）条判决以损害赔偿代替解除合同。
Damages for Fraudulent Misrepresentation欺诈性虚假陈述的损害赔偿
8.10.6 Whether damages may be awarded for misrepresentation depends on whether the misrepresentation is fraudulent, negligent or innocent. At common law, damages may be awarded for fraudulent misrepresentations. A fraudulent misrepresentation is a false representation that is made: (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. In such a case, the representor would have committed the tort of deceit and the representee is permitted to recover for all losses incurred as a consequence of the fraudulent misrepresentation, even for losses which might not have been reasonably foreseeable.
是否能够给与损害赔偿要看虚假陈述的性质是欺诈性的(fraudulent)，过失性的(negligent) 还是无辜性的(innocent)。在普通法上，因欺诈性陈述可被判令损害赔偿。虚假陈述的“虚假”因素表现为：“（1）蓄意地，（2）不相信其是真实的，或者（3）罔顾后果地或粗心大意地不在意其是真是假。”见Derry v Peek (1889) 14 App Cas 337, 374。这种情况下，陈述人即犯下欺骗性侵权行为，被陈述人被允许追回因为欺诈陈述所招致的各种损失，即使损失并非可以合理地预见到。
Common Law Damages for Negligent Misrepresentation过失虚假陈述的普通法损害赔偿
8.10.7 Where an operative misrepresentation results from negligence, the party who has relied on it may obtain damages by commencing an action in the tort of negligence. This requires proof that there is a `special relationship′ between the parties which places the representor under a duty to take reasonable care in furnishing information or advice to the representee, and that the representor has failed to do so. A more extensive survey of the legal principles relating to this branch of the law is contained in [See Chapter 20 on Tort - Negligence]. Recovery in such a case would, however, be restricted to losses which are reasonably foreseeable.
如发生功效的虚假陈述属于过失引起，信赖它行事的一方可以通过提起侵权过失之诉而获得损害赔偿。这需要证明当事方之间有一种“特殊关系”，陈述人因之有责任尽到合理注意以给被陈述人提供信息或建议，但他却没能那样做。（关于这个领域的法律原则的更深入的讨论见下文第二十章“过失侵权法”。）然而这种情形下追偿的范围限于合理预见到的损失。
Statutory Damages for Negligent Misrepresentation过失虚假陈述的成文法赔偿
8.10.8 Alternatively, a party who has contracted in reliance on a negligent misrepresentation may claim damages under 2(1) of the Misrepresentation Act (Cap 390, 1994 Rev Ed). In fact,