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Representations and warranties: Difference between revisions
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[[File:Limited Warranty.jpg|450px|thumb|center|An ''objet trouvée'' for our times.]] | [[File:Limited Warranty.jpg|450px|thumb|center|An ''objet trouvée'' for our times.]] | ||
}} | }} | ||
==Representations== | |||
{{representationdescription}} | {{representationdescription}} | ||
==Warranties== | |||
{{warrantydescription}} | {{warrantydescription}} | ||
==“[[Criswell]]” reps and warranties: as to the [[future]]== | |||
{{future facts}} | {{future facts}} | ||
==On the need for both reps ''and'' warranties== | ==On the need for both reps ''and'' warranties== | ||
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Still, we mention for completeness: that lone wolf of clarity on the prairie of dense American legal drafting, {{author|Kenneth A. Adams}} once 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'' [2015] Vol 16 at 203, if you want to read it in its original locale.</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 “[[Representation|represents]]”, nor “[[Warranty|warrants]]”, but “''states''”. | Still, we mention for completeness: that lone wolf of clarity on the prairie of dense American legal drafting, {{author|Kenneth A. Adams}} once 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'' [2015] Vol 16 at 203, if you want to read it in its original locale.</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 “[[Representation|represents]]”, nor “[[Warranty|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 | 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 but, still, we struggle with this one. The key to the problem reveals itself in the first paragraph: | ||
:''The phrase “represents and warrants” is a fixture in English-language contracts. It’s used to introduce statements of fact, as are the verbs “represents” and “warrants” used separately. And the words “representation” and “warranty” are used to refer to statements of fact in a contract.'' | :''The phrase “represents and warrants” is a fixture in English-language contracts. It’s used to introduce statements of fact, as are the verbs “represents” and “warrants” used separately. And the words “representation” and “warranty” are used to refer to statements of fact in a contract.'' | ||
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[[File:Dramatic Chipmunk.png|200px|thumb|right|[[Dramatic look gopher]] yesterday]] | [[File:Dramatic Chipmunk.png|200px|thumb|right|[[Dramatic look gopher]] yesterday]] | ||
==“Warranty” in the sense of a ''consumer'' warranty== | |||
Consumer protection is, as you know, hardly the [[JC]]’s forté, but a warranty in a finance contract seems to me to be a different thing that a warranty on a toaster, and it is perhaps here whence the American confusion about future facts might arise. | |||
For, as logic surely demands, one can only exercise the warranty on one’s new toaster in the [[future]] — so does that not mean a toaster warranty must be a contractual commitment about its ''future'' merchantability? Perhaps not. The laws of [[entropy]], and [[Anti-fragile|fragility]], being what they are, a toaster’s innate fitness for purpose can hardly improve with time, so a subsequently-revealed want of suitability, must be a function of a defect that was latent — not apparent, but yet lurking there, out of sight — at the time of purchase. Thus, we can regard that warranty, when made, as a statement of ''present'' fact: that “this here toaster is so well made that it will not, without unforeseen intervention, stop working within the warranty period.” | |||
That it thereafter ''does'' stop working during the warranty period, you can view as rebuttable evidence that it was not made as well as claimed. After all, there are plenty of ways to invalidate the warranty on a toaster: by opening it up and poking around inside it; by using it against instructions, not wiping it regularly with a soft cloth, and so on. All these, we say, are directed at preserving the state of the toaster as sold, rather than ensuring the toaster’s ongoing merchantability against all the idiotic tribulations a consumer can put an innocent device through. | |||
==What sort of things does one represent or warrant about?== | ==What sort of things does one represent or warrant about?== | ||
'''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]] — [[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. 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 artefacts, they are completely useless. For a great example of such a useless [[warranty]], see Para {{gmslaprov|14(e)}} of the {{gmsla}}. | '''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]] — [[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. 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 artefacts, they are completely useless. For a great example of such a useless [[warranty]], see Para {{gmslaprov|14(e)}} of the {{gmsla}}. | ||
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*[[Chicken Licken]] | *[[Chicken Licken]] | ||
{{ref}} | {{ref}} | ||
{{Technical Tuesday|Nov 20}} | |||