5. Positive Terms
5.1 Terms and representations
terms are part of the contract, representations are not
automatic right to damages if warranty is broken
representations are ‘floating’
made around time of contracting, can give rise to damages and affect
validity of contract
no automatic right to damages
false representation may entitle innocent party to damages if there is a fault
Oscar Chess Ltd. v Williams (1957)
warranty (first sense)
term of the contract
constitutes a promise or guarantee which, if broken, automatically
entitles other party to damages
distinguishing representation from a warranty
look at parties’ objective intentions, or
if intentions are unclear ask what is the appropriate remedy
5.2 Collateral warranties
if statement cannot constitute a term of contract, courts may hold breach of
contract is justified
and hold that statement is a term, a warranty, in a collateral contract, a
contract on the side
not always used to evade inconvenient rules of law
can instead form a term relating to a party’s conduct in run-up to
contract
5. Positive Terms 1
5.1 Terms and representations
terms are part of the contract, representations are not
automatic right to damages if warranty is broken
representations are ‘floating’
made around time of contracting, can give rise to damages and affect
validity of contract
no automatic right to damages
false representation may entitle innocent party to damages if there is a fault
Oscar Chess Ltd. v Williams (1957)
warranty (first sense)
term of the contract
constitutes a promise or guarantee which, if broken, automatically
entitles other party to damages
distinguishing representation from a warranty
look at parties’ objective intentions, or
if intentions are unclear ask what is the appropriate remedy
5.2 Collateral warranties
if statement cannot constitute a term of contract, courts may hold breach of
contract is justified
and hold that statement is a term, a warranty, in a collateral contract, a
contract on the side
not always used to evade inconvenient rules of law
can instead form a term relating to a party’s conduct in run-up to
contract
5. Positive Terms 1
