Template:Undertakingscovenantsrepresentationswarranties

Revision as of 08:59, 8 September 2016 by Amwelladmin (talk | contribs)

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 a position as if it had never entered in to the bargain in the first place)

A 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")

This is why we see "representations and warranties" - it gives the wronged party the maximum possible range of remedies.

An 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.

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 a contractual promises, and any lover of plain English should therefore seek them out and, with extreme prejudice, relieve them of their command.