Acknowledgement

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An acknowledgement is a representation from the point of view of someone who doesn’t believe his counterpart is listening.

But here is the funny thing. A representation, as as every student of the law knows, is a pre-contractual statement in reliance upon which a merchant enters the contract. It is not a term of the contract — that would be a warranty.

A representation relies on the representor having heard it and relied on it before entering into the contract. A warranty is coded into the contract. By coding the representee’s acknowledgement into the act of signing the contract — its acceptance of it — you convert a pre-contractual skirmish into a fully fledged warranty.

And what is so bad about that? you might ask. Nothing — verily, given the likelihood these days of any legal action flowing from a civil interaction, civil or otherwise, really, nothing — but purists might like to consider that the remedies for breach of a pre-contractual representation — namely, avoiding the contract; putting the parties back in the position they were in before this whole ghastly business started — are quite different from those for a breach of contract — where a misbehaving merchant must put his innocent counterpart in the position the latter would have been in had the contract been performed properly all along.

See also

• Representations and Warranties Anatomy