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A {{tag|representation}} is a statement of '''present [[fact]]''' made by one person ''that induces another to enter a {{tag|contract}}''. By its nature, a {{tag|representation}} is therefore ''not'' a [[term]] of the {{t|contract}} itself — it cannot be; it was made before the contract came about; it is an {{tag|egg}} to the contract’s [[Chicken-licken|chicken]] — although that won’t stop [[Mediocre lawyer|attorneys]] gleefully adding representations into the {{tag|contract}} afterward, co-branding them as [[warranty|warranties]], for good measure. For, if your counsel is [[Mediocre lawyer|diligent]] enough, you may have your cake and eat it, too. [[Non-contractual representation|Non-contractual representations]] may provide relief: a false [[representation]] may entitle the party induced into the contract in reliance on it to claim under the [[Misrepresentation Act 1967]] and [[rescind]] the {{tag|contract}} altogether, ''or'' claim [[damages]] for [[negligent misstatement]] in {{tag|tort}}.
A '''[[representation]]''' is a statement of '''present or historical [[fact]]''' made by one person to another ''outside'' the bounds of a contract ''that induces that other person to enter a [[contract]]''. By its nature, a [[representation]] is therefore ''not'' a [[term]] of the [[contract]] itself — it cannot be; it was made before the contract came about; it is an [[egg]] to the contract’s [[Chicken-licken|chicken]] — although that won’t stop [[Legal]] riddling your contract with representations and, usually, co-branding them as [[warranty|warranties]] for good measure. A false [[representation]] may entitle an innocent to claim under the [[Misrepresentation Act 1967]] and [[rescind]] its [[contract]], ''or'' claim [[damages]] for [[negligent misstatement]] in [[tort]].  


Americans seem to have a different, and confused, idea about what a representation is, as ably, though a little tediously, argued by the learned author of {{br|A Manual of Style For the Drafting of Contracts}},<ref>[https://www.adamsdrafting.com/wp/wp-content/uploads/2015/06/Adams-Eliminating-the-Phrase-Represents-and-Warrants-from-Contracts.pdf Here], for those needing a sleeping draught.</ref> believing it to be statement of ''past'' fact in a contract for which a party assumes responsibility, whereas a warranty is an equivalent statement of ''future'' fact. Though apparently attested to by no less august an institution than the American Bar Association<ref>Commentary on the ABA model stock purchase agreement, 2011.</ref> this seems wrong, even in the Land of the Shining Beacon on the Hill, and certainly under [[English law]], as a matter of common sense. Warranties and representations both address matters of existing or historical fact; assurances as facts in the future — [[Criswell]] would tell you, these are the meaty ones, for the future is where you andI are going to spend the rest of our lives —are called “promises”.
Being founded on the [[tort]]ious action on [[negligent misstatement]], one of the ingredients of an actionable [[misrepresentation]] is that the representer somehow fell short of her [[duty of care]]: the simple fact that the representation was false might not be not enough if she can’t cannot reasonably have ''known'' it was false. This feels a more significant distinction than it is: [[tort]] governs situations where the parties, being randoms, have not had the opportunity to document their duties to one another, so the law steps in to help. Where they ''have'', through the medium of [[contract]], the law says, “you don’t need my clever appeals to the judgment of [[Man on the Clapham Omnibus|prudent people on public transport in south London]] to work out how you must treat each other, because you have worked it out for yourselves.”
 
Where the parties ''have'' written down their respective duties, but they still appeal to a [[tortious]] standard — which is what they are doing by writing “[[representations]]” into a [[contract]] — they are admitting to confusion between the laws of [[tort]] and [[contract]]. Here the [[Man on the Clapham Omnibus|fellow on the Clapham omnibus]] would surely say that the abstract [[duty of care]] maps exactly on to what the parties have voluntarily agreed. Why would it be any different? To be “[[negligent]]” under a [[contract]] is surely to [[breach]] it; no more and no less.<ref>This is why the idea of “[[gross negligence]]” is all the more abstruse.</ref><br>

Latest revision as of 13:30, 14 August 2024

A representation is a statement of present or historical fact made by one person to another outside the bounds of a contract that induces that other person to enter a contract. By its nature, a representation is therefore not a term of the contract itself — it cannot be; it was made before the contract came about; it is an egg to the contract’s chicken — although that won’t stop Legal riddling your contract with representations and, usually, co-branding them as warranties for good measure. A false representation may entitle an innocent to claim under the Misrepresentation Act 1967 and rescind its contract, or claim damages for negligent misstatement in tort.

Being founded on the tortious action on negligent misstatement, one of the ingredients of an actionable misrepresentation is that the representer somehow fell short of her duty of care: the simple fact that the representation was false might not be not enough if she can’t cannot reasonably have known it was false. This feels a more significant distinction than it is: tort governs situations where the parties, being randoms, have not had the opportunity to document their duties to one another, so the law steps in to help. Where they have, through the medium of contract, the law says, “you don’t need my clever appeals to the judgment of prudent people on public transport in south London to work out how you must treat each other, because you have worked it out for yourselves.”

Where the parties have written down their respective duties, but they still appeal to a tortious standard — which is what they are doing by writing “representations” into a contract — they are admitting to confusion between the laws of tort and contract. Here the fellow on the Clapham omnibus would surely say that the abstract duty of care maps exactly on to what the parties have voluntarily agreed. Why would it be any different? To be “negligent” under a contract is surely to breach it; no more and no less.[1]

  1. This is why the idea of “gross negligence” is all the more abstruse.