C purchased painting said to be by artist John Constable.
5 years later, C discovered the painting was not by Constable, when he tried to sell it.
C applied to have contract rescinded and for repayment.
Rescission (an equitable remedy) for innocent misrepresentation is open to buyer but within a reasonable time.
Per Evershed M.R.:
If a man elects to buy a chattel, especially a work of art, upon the faith of some *representation* which has no contractually binding effect, and delivery of the chattel is accepted, there is much to be said for the view that on acceptance there is an end of that particular transaction.
(I.e. It was a misrepresentation, not a term of the contract. No mistake: Constable was a quality, not a fundamental subject.)
Per Evershed M.R. and Jenkins L.J.
Where a statement by the seller amounts to a *warranty*, in which case the law gives an adequate remedy in damages if the warranty be broken, it is doubtful whether the equitable remedy of rescission for innocent misrepresentation ought to be granted at all.
(I.e. Warranty breach --> damages only.)
Per Denning L.J.
Assuming that the statement that the picture was painted by Constable was a *condition* of the contract, the buyer had lost his right to reject on the ground of breach of condition and was relegated to his right to claim damages for that breach; and if a claim to reject on the ground of breach of condition is barred a claim to rescission on the ground of innocent misrepresentation is a fortiori barred.
(I.e. By accepting the painting/goods in performance of contract, he cannot thereafter reject, but is relegated to his claim for damages.
Innocent misrep is less potent than breach of condition; and a claim to rescission for innocent misrepresentation must at any rate be barred when a right to reject for breach of condition is barred.)
"It was a specific picture, “Salisbury Cathedral.” The parties were agreed in the same terms on the same subject-matter, and that is sufficient to make a contract."
(I.e. "Constable" was about quality, not subject matter.)
Court of Appeal:
Appeal was dismissed in favour of D.
Recall of 'terms' of contract vs 'representation':
Condition breach --> repudiation + damages.
Warranty breach --> damages only.
Innominate breach --> court looks at consequences, decides remedy.