Misrepresentation of an essential element of a contract, as distinguished from mistake on the one side and fraud on the other, is necessarily quite rare. Indeed in the cases decided on that topic it is often hard to determine whether the misrepresentation does not amount to fraud, since misrepresentation is used of innocent misrepresentations and fraudulent misrepresentations indiscriminately. The difficulty is further complicated by the use which some courts make of the term "legal fraud" to designate misrepresentation,1 or by the fact that they say that such misrepresentation is attributable to fraud.2 On the other hand, misrepresentation is sometimes explained as if it were mistake.3 Except as concerns the effect of the negligence of the party who is misled and who seeks relief, there is little practical difference between the effect of misrepresentation and the effect of mistake.