Why 'representation or warranty', not 'representation or condition'?

Question

Why's "warranty" coupled with "representation", not 'condition'?

Context

In Canadian and English law, representations differ from warranties¹. Thus they aren't doublets, as Ashurst's distinguishes them beneath (as do 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

p. 613 in Contract Law: Text, Cases, and Materials (2018 8 ed) instances one use of 'representation or warranty'.

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

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^{^}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.

Answer 1

'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.

Answer 2

As others have mentioned, conditions and warranties are both types of contractual terms.

Since they are terms, breaching a condition or warranty entitles you to sue for breach of contract. A breach of a condition allows you to sue for damages and to terminate the contract, whereas the breach of a warranty allows you to sue for damages, but does not allow you to terminate the contract.

Representations are not contractual terms, they are simply statements made during negotiation. E.g. "This horse is healthy", "this car has only 10 miles of usage", "this water will cure your disease."

A breach of a representation, may, depending on the circumstances, allow you to sue for damages.

When someone makes a representation to you, and you enter a contract because of the representation. Then, if the representation turns out to be false (the horse wasn't actually healthy, the car had 1000000 miles, etc.), you may sue for misrepresentation. This allows you to sue for damages, And usually, rescission of the contract (returning all parties back into the pre contractual position: take this sick horse and give me back my money)

Note that the main differences between warranties and representations is that:

• for a representation to be legally enforceable against the person making the representation, the person suing must have relied on the representation in his decision to enter the contract. Therefore even if a representation was false, if you would have entered the contract anyway, you cant sue for misrepresentation. Warranties need not be something you relied upon to enter the contract.

• Breach of warranty falls under the concept of breach of contract, misrepresentation is not breach of contract, but a claim in equity.

• The remedy for breach of warranty is damages, but the contract is allowed to continue. You cant cancel the contract. The remedy for misrepresentation allows for you to rescind the contract, thereby returning the parties back to their original position. I.e the contract ends.