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Representations and warranties: Difference between revisions
Representations and warranties (view source)
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You may wonder whether the usual rules about [[concurrent liability]] in contract and tort would have something to say about that but, in Casanova’s immortal words — [[if in doubt, stick it in]]. Be a lover, not a fighter. | You may wonder whether the usual rules about [[concurrent liability]] in contract and tort would have something to say about that but, in Casanova’s immortal words — [[if in doubt, stick it in]]. Be a lover, not a fighter. | ||
===Is it such a big deal?=== | |||
Well, that titan of drafting style {{author|Ken 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] 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 Ken: he’s a bit like a well-meaning uncle who just goes on a bit on his pet subjects — but we have trouble with this one. The key to the problem reveals itself in the first paragraph of his monologue: | |||
:''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.'' | |||
But it does 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> They add colour and richness to the reading experience, but unless they saddle someone with some sort of legal obligation, they have no place in a contract. | |||
Firstly, a simple ''statement'' in a contract — “the vendor ''states'' that it is duly incorporated in the state of Vermont” doesn’t manage ''anything'' of legal significance, unless you infer that to be a representation or a warranty. | |||
===What sort of things does one represent or warrant about?=== | ===What sort of things does one represent or warrant about?=== | ||