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A {{tag|representation}} is a statement of '''present [[fact]]''' made by one person | 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}}. | ||
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. This seems wrong, even in the Land of the Shining Beacon on the Hill, and under [[English law]], and certainly as a matter of common sense. | |||
Revision as of 19:15, 8 November 2020
A representation is a statement of present fact made by one person that induces another 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 attorneys gleefully adding representations into the contract afterward, co-branding them as warranties, for good measure. For, if your counsel is diligent enough, you may have your cake and eat it, too. 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 contract altogether, 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 A Manual of Style For the Drafting of Contracts,[1] 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. This seems wrong, even in the Land of the Shining Beacon on the Hill, and under English law, and certainly as a matter of common sense.