In Canadian and English law, representations differ from warranties^. Though they aren't doublets, why's "warranty" coupled with "represent", not 'condition'?

I quote Ashurst's distinction of them beneath. but it may help to read that of Cripps LLP, Osborne Clarke, Blake Morgan, Walker Morris.

A warranty is a term of the contract, a breach of which gives the innocent party the right to claim damages but not to treat the contract as repudiated. A warranty can therefore be contrasted with a condition, which entitles the innocent party to treat the contract as repudiated, and an "intermediate" (or "innominate") term, which may entitle the innocent party to treat the contract as repudiated depending on the nature and consequences of the breach.2

I accept that 'innominate' is too uncertain a term to be coupled with 'represent'. Contract Law: Text, Cases, and Materials (2018 8 ed) p. 613.

The principles applied by the courts when deciding whether or not a clause is reasonable have been discussed earlier (pp. 427–434, Chapter 13, Section 3). It is probably wise not to attempt to exclude liability for ‘any representation or warranty’ because such a clause may, as a matter of interpretation, extend to a fraudulent misrepresentation and an attempt to exclude liability for fraudulent misrepresentation must be unreasonable (see Tomas Witter Ltd v. TBP Industries Ltd [1996] 2 All ER 573; for a contrary view see Zanzibar v. British Aerospace (Lancaster House) Ltd [2000] 1 WLR 2333, where it was held that the words ‘any representation’ were not apt, as a matter of construction, to encompass a fraudulent misrepresentation given that liability for fraud generally cannot be excluded, see p. 612, earlier in this section). It is, however, safer to state that the exclusion or limitation applies to any representation other than one made fraudulently

^Perhaps they are in US law too? Tina L. Stark. Drafting Contracts: How and Why Lawyers Do What They Do (2013 2 ed). 18.3.

Therefore, they should be pared down to one word—unless the drafter intends a substantive difference, as in the phrase represent and warrant.

  • "Warrant" is a verb in your example, and its meaning is bound to the noun "warranty". The same doesn't quite work with "condition" because it doesn't tend to used as a verb in the same broad manner as "warrant". – Greendrake Apr 21 at 5:40
  • @Greendrake Sorry - word frequency doesn't appear to answer my question. Legal English involves verbs not used in everyday language, like "covenant", "estop". The verb "condition" is regularly used in statistics. – Chrome Apr 21 at 5:56

'Warrant' means the giving of a promise by the warranting party that a future fact will exist. If I'm understanding you correctly, you're suggesting that the verb 'condition' could be used in its place. The problem with this is two-fold:

  1. (Conflict with Existing Term) The sense of the verb 'condition' to mean 'grant a condition' would conflict with the existing sense of the verb 'condition' used in contracts, namely the application of a requirement to the granting of a right (eg. 'X conditioned the right of Y to seek repayment on notification being sent by Y in a particular manner').

  2. (Mischaracterisation of Promise) As noted in the Ashurst article, a 'condition' is a promise in a contract, the breach of which entitles the innocent party to treat the contract as being repudiated. This is in contrast to a warranty, the breach of which merely entitles the innocent party to damages. Even if (1) were not an issue, the term 'represent and condition' would mischaracterise the nature of the promise(s) being given.

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