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Representations and warranties: Difference between revisions
→What sort of things does one represent or warrant about?
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===What sort of things does one represent or warrant about?=== | ===What sort of things does one represent or warrant about?=== | ||
Matters of '''fact''' | ====Facts==== | ||
Matters of '''fact''' relating to the internal workings of one’s organisation that are not readily apparent to an outsider looking in, and which have a direct bearing on the enforceability of the {{t|contract}}. For example, that execution of the contract has been properly authorised by any internal procedures — this helps in a little way to give comfort that, if push came to shove, the {{t|contract}} could not be set aside as not having been validly entered. Unless you are trading with a municipal authority such as — cue [[dramatic look gopher]] [[File:Dramatic Chipmunk.png|200px|thumb|right|[[Dramatic look gopher]] yesterday]]— [[Orange County]] or [[Hammersmith and Fulham council]], this is a fanciful, [[chicken-licken]]ish fear in this day and age, but it is hardly an imposition to make this rep, so just go with it. | |||
Besides, a [[representation]] (as opposed to a [[warranty]]) in this case gives you a leg to stand on if your {{t|contract}} turns out to be void for [[ultra vires]], as that [[misrepresentation]], freed from the usual shackles of [[concurrent liability]] since there is, [[Q.E.D.]] no contract, dangles before you as an open-and-shut action in [[tort]] for [[negligent misstatement]]. | |||
Some matters of fact — such as your counterparty’s internal motivation or intent in entering the contract — are silly things to seek representations or warranties about, because it is impossible to gainsay them. As legal artifacts, they are completely useless. For a great example of such a useless [[warranty]], see Para {{gmslaprov|14(e)}} of the {{gmsla}}. | |||
====Not laws==== | |||
Generally speaking matters of '''law''' are ''not'' appropriate for reps or warranties — if you want a legal opinion you should, well, get a [[legal opinion]] — but every rule is made to be broken and there are some practical exceptions: [[reps and warranties]] as to one’s own legal capacity to enter into a contract or the transaction contemplated by it are common and not really objectionable: this is technically a matter of law but is uncommonly specific to your own organisation, and is a legal “fact” which you really should know about and your counterparty can’t really be bagged for not knowing. | Generally speaking matters of '''law''' are ''not'' appropriate for reps or warranties — if you want a legal opinion you should, well, get a [[legal opinion]] — but every rule is made to be broken and there are some practical exceptions: [[reps and warranties]] as to one’s own legal capacity to enter into a contract or the transaction contemplated by it are common and not really objectionable: this is technically a matter of law but is uncommonly specific to your own organisation, and is a legal “fact” which you really should know about and your counterparty can’t really be bagged for not knowing. | ||