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1. Briefly explain the differences between a representation and a warranty; between an
affirmative warranty and a promissory (continuing) warranty; between a warranty of fact and a
warranty of knowledge; and between a warranty of fact and a warranty of opinion. Give
examples to illustrate the differences for all four comparisons.
Answer 1
In the context of contract law, the terms "representation" and "warranty" often play crucial roles in
determining the obligations and expectations between contracting parties. These terms, though
sometimes used interchangeably, have distinct legal implications and consequences. Additionally,
warranties can be further categorized into various types, including affirmative and promissory
(continuing) warranties, warranties of fact and knowledge, and warranties of fact and opinion.
Understanding these distinctions is essential for accurately assessing contractual responsibilities and
potential liabilities.
Representation vs. Warranty
A representation is a statement of fact made by one party to another, often during the negotiation
phase of a contract, with the intent to induce the other party to enter into the agreement. If the
representation is false, the injured party may claim misrepresentation and seek remedies such as
rescission of the contract or damages. For example, if a seller falsely states that a car has never been
in an accident to persuade a buyer, this would be a misrepresentation if it turns out to be untrue.
In contrast, a warranty is a promise or assurance that a particular fact or condition is true or will
happen. Warranties form part of the contract itself, and a breach of warranty typically leads to a
claim for damages rather than the right to rescind the contract. For instance, if the seller warrants that
the car is in good working condition, and it later breaks down due to pre-existing issues, the buyer
may claim damages for breach of warranty.
Affirmative Warranty vs. Promissory (Continuing) Warranty
An affirmative warranty is a guarantee that a specific fact or condition is true at the time the
warranty is made. It concerns a past or present fact. For example, a statement in an insurance
contract that the insured property is currently undamaged is an affirmative warranty. The focus is on
the state of affairs at the moment the contract is concluded.
A promissory (continuing) warranty, on the other hand, is a commitment that a particular fact or
condition will remain true throughout the duration of the contract. This type of warranty imposes an
ongoing obligation on the party making the warranty. For example, a warranty in a lease agreement
that the tenant will maintain the property in good condition throughout the lease term is a promissory
warranty. If the tenant fails to do so, this would constitute a breach of the warranty.
