Template:Undertakingscovenantsrepresentationswarranties: Difference between revisions

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A {{tag|representation}} is a pre-contractual statement of a present fact, the failure of which entitles an innocent party to [[rescind]] a contract altogether (i.e. to put itself in a position as if it had never entered in to the bargain in the first place)
'''{{tag|Representation}}''': A {{tag|representation}} is a pre-contractual statement of a present fact, the failure of which entitles an innocent party to [[rescind]] a contract altogether (i.e. to put itself in the position it would have been had it never undertaken the ghastly affair in the first place)


A {{tag|warranty}} is a contractual statement of the truth of a present fact, the failure of which entitles the innocent party to sue for damages for [[breach of contract]] (i.e. to compensate it for the value of the contract had the statement been correct). (It also has a specific meaning as a guarantee of merchantability in the context of a Manufacturer's Warranty")
'''{{tag|Warranty}}''': A {{tag|warranty}} is a contractual statement of the truth of a present fact, the failure of falsehood entitles the innocent party to sue for damages for [[breach of contract]] (to compensate it for the value of the contract had the statement been correct). It also has a specific meaning as a guarantee of merchantability in the context of a “Manufacturer's Warranty”.


This is why we see "[[representations and warranties]]" - it gives the wronged party the maximum possible range of remedies.  
This is why so often you see that most laborious of constructions:  “[[representations and warranties]]” — the combination giving the wronged party the maximum possible range of remedies.  


An {{tag|undertaking}}, in a contractual context, is really no different from a promise (though a [[solicitor’s undertaking]] is a quite different thing). It might make sense to characterise it specifically as a promise to ensure that a third party does something (as opposed to the contracting party itself), but it isn't generally used that way.
'''{{tag|Undertaking}}''': An {{tag|undertaking}}, in a contractual context, is really no different from a promise (though a [[solicitor’s undertaking]] is a quite different thing). You might characterise it as a specific promise to ensure that someone ''else'' does something (rather than the person making the promise itself), but it isn't generally used that way.


A {{tag|covenant}}, strictly speaking, is a promise executed by [[deed]], though usage has long since slipped away from that except in the context of transactions involving the conveyance of land.
'''{{tag|Covenant}}''': A {{tag|covenant}}, strictly speaking, is a promise executed by [[deed]], though usage has long since slipped away from that except in the context of transactions involving the conveyance of land.


In any other context, therefore, {{tag|covenant}}s and {{tag|undertaking}}s are nothing more than fancy words for a contractual {{tag|promise}}s, and any lover of {{tag|plain English}} should therefore seek them out and, with extreme prejudice, relieve them of their command.
In any other context, therefore, {{tag|covenant}}s and {{tag|undertaking}}s are nothing more than fancy words for {{tag|promise}}s, and any lover of {{tag|plain English}} should therefore seek them out and, with extreme prejudice, relieve them of their command.

Revision as of 18:57, 7 November 2016

Representation: A representation is a pre-contractual statement of a present fact, the failure of which entitles an innocent party to rescind a contract altogether (i.e. to put itself in the position it would have been had it never undertaken the ghastly affair in the first place)

Warranty: A warranty is a contractual statement of the truth of a present fact, the failure of falsehood entitles the innocent party to sue for damages for breach of contract (to compensate it for the value of the contract had the statement been correct). It also has a specific meaning as a guarantee of merchantability in the context of a “Manufacturer's Warranty”.

This is why so often you see that most laborious of constructions: “representations and warranties” — the combination giving the wronged party the maximum possible range of remedies.

Undertaking: An undertaking, in a contractual context, is really no different from a promise (though a solicitor’s undertaking is a quite different thing). You might characterise it as a specific promise to ensure that someone else does something (rather than the person making the promise itself), but it isn't generally used that way.

Covenant: A covenant, strictly speaking, is a promise executed by deed, though usage has long since slipped away from that except in the context of transactions involving the conveyance of land.

In any other context, therefore, covenants and undertakings are nothing more than fancy words for promises, and any lover of plain English should therefore seek them out and, with extreme prejudice, relieve them of their command.