Warranty - Definition - Law Dictionary Home Dictionary Definition warranty

Definition :

Warranty, a guarantee or security; formerly a promise or covenant by deed by the bargainer, for himself and his heirs, to warrant and secure the bargainee and his heirs against all persons for the enjoying of the thing granted accompanied by a promise, express or implied, that if eviction should take place, the warrantor would substitute an equivalent estate in its place-see Co. Litt. 365 a. In that form it has been superseded in practice by 3 & 4 Wm. 4, cc. 27 (s. 39) and 74 (s. 14). See RECOVERY.

More generally, a warranty is any agreement either accompanying a transfer of property, or collateral to the contract for such transfer, see Lawrence v. Cassell, (1930) 2 KB 83, and Miller v. Cannon Hill Estates Ltd., (1931) 2 KB 113, or to any other agreement or transaction, and in so far as it is a contract a warranty does not differ from any other contractual promise. A warranty may be express or implied by law or statute.

For instances of implied warranties, see that title, CAVEAT EMPTOR, TITLE, COVENANTS FOR, and infra. Implied warranties have been said to underlie or to be the gist of actions for negligence or breach of duty arising out of the special relations between parties; cf. The judgment of Gould, J., in, and notes to, Coggs v. Bernard, 2 Lord Raymond, 1 Sm. L.C., and see NEGLIGENCE.

As a general rule an express warranty, or a known usage, excludes any implication of warranty in regard to the same subject-matter. See expressium facit cessare tacitum, and e.g., QUIET ENJOYMENT. But upon sale of goods if the express warranty (which includes representation, such as 'sample') has been superadded for the benefit of the buyer or is not inconsistent with the implied warranty, the latter is not excluded: cf. (English) Sale of Goods Act, 1893, ss. 14 and 55; and see Drummond v. Van Ingen, (1887) 12 App Cas 284.

The expression 'warranty' in the Sale of Goods Act (see that title and s. 62 (1) of the Act) 'as regards England and Northern Ireland means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such a contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated,' and 'as regards Scotland' it is provided by the same s. that 'a breach of warranty shall be deemed to be a failure to perform a material part of the contract.'

The same Act does not define a condition which, in contract, is a stipulation which goes to the root of the contract and the breach or non-performance of which absolves the promisee from his part of the contract and entitles him to repudiate it in toto. Whether a stipulation is a condition or a warranty depends entirely on the construction of the contract (s. 11), Bentsen v. Taylor, No. 2, (1893) 2 QB 274; and generally, see, e.g., Sale of Goods act, 1893, s. 11.

There is nothing, if the facts are present, to prevent the performance or fulfilment of a warranty in its strict sense of a collateral agreement from being at the same time a condition either of a transfer of property or of the entire contract. On the other hand, the person entitled to the benefit of a condition is at liberty to waive his right to repudiate upon condition broken and merely claim damages or compensation for breach of the collateral agreement: see Sale of Goods Act, 1893, s. 11; and the right to repudiate may also be lost if the promisee has adopted the transaction, or the rights of the parties have been so altered as to prevent a return to the statute quo ante. In the Sale of Goods Act, 1893, specific rules are provided in respect of conditions and warranties. These rules are, in the main, merely declaratory of law which is applicable to many transactions other than sales: see REPRESENTATION; TRADE MARKS; LAND-LORD AND TENANT; PROVISO FOR RE-ENTRY; HOUSING; and, upon sales of certain goods, Anchor and Chain Cables Act, 1899 (62 & 63 Vict. c. 23), s. 2 (warranty of test of anchors exceeding 168 lbs. and cables); (English) Fertilizers and Feeding Stuffs Act, 1926 (16 & 17 Geo. 5, c. 45); Fabrics (Misdescription) Act, 1913 (3 & 4 Geo. 5, c. 17) (inflammable textiles); (English) Merchandise Marks Act, 1887, s. 17; (English) Sale of Food and Drugs Acts, 1926 (16 & 17 Geo. 5, c. 63) and 1928 (18 & 19 Geo. 5, c. 31), and other Statutes.

In marine insurance a 'warranty' means a condition: see Marine Insurance Act, 1906, ss. 33-41.

Means an affirmation made at the time of sale becomes a warranty if it appears on evidence to have been intended by the parties to enter the bargain, Dudhia Forest Co-operative Society v. Mohammad Saiyad S. Abdul Rahman's Co., (1980) 21 Guj LR 272.