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Representations and warranties: Difference between revisions
Representations and warranties (view source)
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==Overview== | ==Overview== | ||
{{representationdescription}} | {{representationdescription}} | ||
{{warrantydescription}} | |||
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. Though apparently attested to by no less august an institution than the American Bar Association<ref>Commentary on the ABA model stock purchase agreement, 2011.</ref> this seems wrong, even in the Land of the Shining Beacon on the Hill, and certainly under [[English law]], as a matter of common sense. [[Warranties]] and [[representations]] both address matters of existing or historical fact; assurances as facts in the future — which, as [[Criswell]] would tell you, are the meaty ones, for the future is where you and I are going to spend the rest of our lives — are called “''[[Promise|promises]]''”. | |||
==The short view== | ==The short view== | ||
Our view is for all intents and purposes beyond ''[[ultra vires]]'', [[representations and warranties]] boil down to ''[[warranties]]''. The giveaway is that they appear in a [[contract]], so are made rather too late in the day to be meaningful pre-contractual representations. For them to have any force ''as'' representations, your operating theory has to be that the contract, though executed, has been so compromised by the falsehood of these statements as to fail for a lack of consensus. In which case the are little more than handsomely formatted, version of the dialogue that passes between merchants in the fog of commercial negotiation. Since both parties have signed their name to them, their evidential value is unimpeachable, but they are still no more than a record of what assurances where given as a prelude to signing the contract. | Our view is for all intents and purposes beyond ''[[ultra vires]]'', [[representations and warranties]] boil down to ''[[warranties]]''. The giveaway is that they appear in a [[contract]], so are made rather too late in the day to be meaningful pre-contractual representations. For them to have any force ''as'' representations, your operating theory has to be that the contract, though executed, has been so compromised by the falsehood of these statements as to fail for a lack of consensus. In which case the are little more than handsomely formatted, version of the dialogue that passes between merchants in the fog of commercial negotiation. Since both parties have signed their name to them, their evidential value is unimpeachable, but they are still no more than a record of what assurances where given as a prelude to signing the contract. | ||