Representations and warranties: Difference between revisions

Well, that lone wolf of clarity on the prairie of dense American legal drafting, {{author|Kenneth A. Adams}} devoted a [https://www.adamsdrafting.com/wp/wp-content/uploads/2015/06/Adams-Eliminating-the-Phrase-Represents-and-Warrants-from-Contracts.pdf 27-page scholarly monograph]<ref>Published in no less august a periodical than ''Transactions: The Tennessee Journal of Business Law'', Vol 16 at 203.</ref> to the subject — maybe a slow week in the practice — to argue the world is wrong, he is right, and the correct word is neither “represents”, not “warrants”, but “''states''”. Now the JC is the last person in the world who would take umbrage at flying one’s opinion straight into the face of global consensus — and we’re fond of Mr. Adams: he’s a bit like a well-meaning uncle who just goes on a bit on his pet subjects — but we struggle with this one. The key to the problem reveals itself in the first paragraph of his monologue:

But they do a bit more than that. A statement of fact is a bit of scene-setting: “It was a dark and stormy night”. “It was bluebell time in Kent”.<ref>{{cite|Hinz|Berry|1970|2QB|40}} per the great [[Lord Denning]].</ref> It adds colour and richness to the reading experience but, unless it saddles someone with some sort of legal obligation, it has no place in a [[contract]]. To be sure, legal contracts are shot through with all kinds of horrific linguistic tics, but unnecessary editorialising about the weather or the local flora is generally not one of them. So, a simple ''statement'' in a [[contract]] — “the vendor ''states'' that it is duly incorporated in the state of Vermont”, or “the Purchaser ''states'' that the moon is made of blue cheese” — doesn’t achieve ''anything'' of legal significance, ''unless one can infer from it that its utterer accepts responsibility for losses occasioned as a result another party relying on that state of affairs to her detriment''. Generally, one assumes contractual responsibility for the present or historical state of the world by ''warranting'' about it, and as to its [[future]] state by ''promising'' it.