The Semantics Fallacy Underlying “Represents and Warrants”

[Update: For my definitive take on this subject, see my article Eliminating the Phrase Represents and Warrants from Contracts, 16 Tennessee Journal of Business Law 203 (2015).]

Yes, I know that I’m getting tiresome, they way I harp on about represents and warrants, like a dog worrying a bone. But I have a new element to add to my analysis.

At the heart of misconceptions regarding represents and warrants is the notion that what verb you use to introduce statements of fact can affect remedies. The clearest articulation I’ve seen of that notion is the following, from page 13 of Tina Stark’s book Drafting Contracts: How Lawyers Do What They Do:

By virtue of [the line “The Seller represents and warrants to the Buyer as follows”], every statement in the sections that followed would be both a representation and a warranty.

From that follows the notion that only a representation can support an action for misrepresentation, and only a warranty can support an action for breach of warranty.

One big problem with this literal-minded approach is that in the U.S., it has no support. See MSCD 3.283. If you want a second opinion, note that Glenn D. West, who has also explored this issue, but from a very different perspective, also agrees that the literal-minded approach has no support; see my exchange with Glenn in this 2012 blog post. Thus far, no one has even attempted to show Glenn and me that we are mistaken in this.

But I think that one must focus equally on the semantic failing at the heart of the literal-minded approach. That’s what I do in MSCD 3.278:

But in standard English, the verb used to introduce a statement of fact serves only to identify who is making the statement and the manner in which they’re making it. You could use any number of verbs, and in whatever tense is appropriate: Says. Utters. Proclaimed. And so on. Misapplying represents and warrants is inconsistent with standard English, in that it freights with added significance the verb, or verbs, used to introduce a statement of fact. Only the initiated would think that the verb used could have implications for remedies.

Now here’s my new thought: A corollary is that it doesn’t make sense to constrain the meaning of represents and warrants in the manner proposed by the literal-minded approach. By analogy, one might as well say that for a statement to constitute libel, the statement has to begin with “Roe hereby libels Doe as follows,” or has to refer to itself as being libelous. Whether a statement constitutes libel depends on the content of that statement. Similarly, it makes sense that whether a statement can support an action for misrepresentation, or an action for breach of warranty, depends on the content of that statement and on procedural requirements. It wouldn’t make sense to have it depend on whether the statement is introduced by the verb represents, the verb warrants, or both.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

35 thoughts on “The Semantics Fallacy Underlying “Represents and Warrants””

  1. Ken, keep worrying that bone. There’s plenty of marrow left in it. And thanks for linking to the Glenn West comments and article. He makes a lot of sense.

    The more I think about it, the more troubling I find the argument that saying “represents” in a contract creates tort remedies. Not least because:

    (1) A representation is simply an assertion. What creates the tort remedy is a negligent or fraudulent misrepresentation (that is then relied upon and causes loss etc). Those who argue that use of the word represents create a tort remedy are loading lots of assumptions into a word that is inherently neutral.
    (2) A test for these types of tortious misrepresentation is that it induces someone to enter into a contract. I don’t really understand how a statement IN a contract can be an inducement to enter into the contract. The inducement would have to happen before the contract was signed. This is consistent with the wording of the UK Misrepresentation Act 1967 which refers to the possibility that the inducement subsequently becomes a term of the contract, and then gives rise to contractual remedies. However, I understand that US State case law may not support this argument.
    (3) It is argued by many (including, apparently, Tina Stark) that represents and warrants is lawyers’ shorthand to create both contract and tort remedies. Yet in US corporate transactions, even though the term “represents and warrants” is used, it is common to see boilerplate language at the end stating that the only remedies are in contract. This rather negates the idea that the drafter, using the term “represents”, wanted to create tortious remedies, and instead suggests that it is merely drafting (bad) habit to use the phrase “represents and warrants”.

    • Mark: I don’t need to get to your point (1), as the idea that a representation has to be preceded by “represents” is silly. But it’s an interesting “and even if” argument.

      Similarly, I don’t need to resort to your point (2). Incidentally, I have no problem with notion of something in a contract causing someone to enter into a contract.

      And yes, use of “represents and warrants” even when indemnification is the only remedy shows that use of the phrase is a bad habit.

      This post was a targeted one, so I didn’t even mention the coup de grâce: why indulge in the dysfunction of represents and warrants when you can state clearly whatever remedies regime you want to impose?


      • Although the post was targeted to representations, I wonder whether acknowledgments couldn’t do with some chewing over, too.

        MSCD3 doesn’t actually define acknowledgments, but 3.313 advises drafters to “[u]se acknowledge if the party in question is accepting as accurate a fact offered by another party.” An example given starts: “The parties acknowledge…,” so apparently there can be joint acknowledgments other than assertions of fact in recitals. Acknowledgments preclude the acknowledging party from later challenging the accuracy of an acknowledged fact, according to MSCD3 3.314.

        I think acknowledgments can do more, such as prevent a party from claiming ignorance of a fact: “Widgetco acknowledges that Acme has one or more felony convictions for securities fraud”; “Widgetco acknowledges that Acme might be providing and might in the future provide to competitors of Widgetco and affiliates and subsidiaries of competitors of Widgeco services similar to those Acme is to provide to Widgetco under this agreement.”

        The first example might be more tactfully covered by a statement: “Widgetco states that the legal background of Acme is not a reliance factor in Widgetco’s making this agreement” or even more indirectly, “The parties state that the legal background of the other is not a factor on which either party is relying in making this agreement.” (Are we still in acknowledgment land?)

        My point isn’t primarily that the definition of acknowledgment needs expansion, but rather that maybe acknowledgments can be expressed in the “A states X” formulation, coupled with a “consequences regime,” so that all language of declaration can be treated alike, with a “statement of fact, statement of consequence” approach, instead of making the verb carry the load.

  2. I’m puzzled with the conclusion you reach regarding Stark’s example. Stark states that if you start the reps and warranties section with the sentence “The Seller represents and warrants to the Buyer as follows…,” then every statement would be both a rep and warranty. That’s correct and I’m not sure why you think that by this she means that there can be no other representation in the contract? That’s not what the book says (I am using the book for a class and found the chapter dealing with reps and warranties to be particularly clear and helpful).

    • I’m not saying that “there can be no other
      representation in the contract.” Instead, I’m saying that what verb you use to introduce a statement of fact has no bearing on whether that statement of fact would constitute a representation supporting a claim for misrepresentation or a warranty supporting a claim for breach of warranty.

      You say Tina’s statement is “correct.” I don’t know your basis for saying so. I’ve explained at length why I, and Glenn West, have reached a different conclusion.

      • I say this statement is “correct” because if a party says it “represents and warrants,” then it seems evident that is what the party intends to be doing – representing and warranting.

        • But what you suggest is meaningless unless legal consequences follow, namely that “representing” supports an action for misrepresentation and “warranting” supports an action for breach of warrant. It so happens that the caselaw and the UCC show just the opposite.

          If I’m mistaken and you’re not suggesting that the two verbs have implications regarding remedies, then why insist that both verbs be used to introduce a statement of fact?

        • I’m with Nancy. As a matter of convenience, the things that I want a party to assert as fact (i.e., they have rights to perform the services) are the things I want to continue to be the case going forward (i.e., they will continue to have the rights to perform the services). In other words, with rare exception, the words I use to state a representation are the same as the words I use to state a warranty. This makes for shorter agreements. Also, some courts enforce that old rep vs. warranty distinction. And it’s easy enough to get by that by just saying “represents and warrants” – it’s clear that the a party both meant to say something was the case today and will be the case tomorrow.

          I’d be interested to see cases that examine use of “represents and warrants” to see if they try to parse between the two. Maybe there are cases out there. But you tend to see only the cases where a party used “represents” or “warrants” and a court enforced that distinctive use.

          • I don’t accept your second and third sentences. I suggest that you’re mixing categories of contract language.

            And “some courts enforce that old rep vs. warranty distinction”? Some courts in England, land of bollixed contract interpretation, sure. But Glenn West and I have been able to find no such caselaw in the U.S.; I invite you to cite some.

            If you’d like to see some cases that support my position, I cite them in MSCD and some posts on this blog.

            Mind you, the whole point of this post is that the semantics underlying the ostensible distinction doesn’t work. That’s the foundation of my position; the caselaw is ancillary.

          • I don’t do case research anymore, but I certainly remember cases from law school. I don’t know how you can reject my 2d and 3d sentences, though. They are matters of fact. They are, indeed, representations of what is.

          • “I certainly remember cases from law school” might be a suitable basis for discussion in some forums, but not this one.

            And I don’t know what to make of your second and third sentences. If you were to consult MSCD then come back to me with a detailed statement of what you have in mind and why I’m wrong, I’d be happy to consider it.

          • It’s your blog, so I guess it’s up to you to decide what is (or is not) suitable. So feel free to redact away as needed.

            That aside, it’d be silly for me to say you’re wrong, because you have a preference you use when you draft contracts. In this case, when we draft our contracts our separate ways, we each achieve the result our client wants with an economy of words that are clear and unambiguous.

          • It’s not a matter of redacting anything: I’ve been happy to have you say your piece. It’s simply that discussion of this topic has, over time, reached a level of detail that goes way beyond what you’ve offered.

            And the foundation principle of my writings is that to express a given concept in a contract, there’s one most effective way, then all the other, inferior, ways. So I don’t agree that your approach and my approach are equally effective.

          • I see our fundamental disagreement: I don’t believe in “one most effective way” when it comes to drafting contracts. I value anything that promotes economy of words, efficiency in negotiating, clarity to all parties (attorneys and clients), and client satisfaction.

  3. Ken:

    I usually do not respond to your blog entries, not because I do
    not have a strong and researched rebuttal, but because my response would be too long and inappropriate for the forum. A full response is in the offing, but in the interim I note the following:

    1. Nowhere in my textbook or in any of my other writings do I state or suggest that the only way to create representations and warranties is to precede statements of fact with the words “represents and warrants.” Such a statement would be wrong and inconsistent both with tort and contract law. (See W. Page Keeton and Dan B. Dobbs, Robert E. Keeton and David G. Owen, Prosser and Keeton on Torts § 106 (5th ed., West 1984) (Prosser) and UCC 2-313(2). That said, the issue for the transactional drafter is how to best memorialize the parties’ business deal and minimize the client’s litigation risk. Practice, case law, and commentary all support the continued use of “represents and warrants.”

    2. Courts, parties, and litigants have long proceeded on the basis that in a written, commercial contract “represents and warrants” creates both representations and warranties and that a false representation and breach of warranty create common law causes of action. In that case, CBS alleged both misrepresentations and breaches of warranties. Ziff-Davis did not dispute, and the courts did not even
    address, this correlation because the relationship is so basic and fundamental. The seminal CBS v. Ziff-Davis case is paradigmatic. See
    generally CBS Inc. v. Ziff-Davis Publg. Co., 554 N.Y.S.2d 449
    (1990) (CBS).

    3. The relationship between warranties and breaches of warranties is direct and straightforward. To have a cause of action for breach of warranty, a party must prove an express warranty and a breach.

    “Once the express warranty is shown to have been relied on as
    part of the contract, the right to be indemnified in damages for its breach does not depend on proof that the buyer thereafter believed that the assurances of fact made in the warranty would be fulfilled. The right to indemnification depends only on
    establishing that the warranty was breached.” CBS at 453.

    4. The relationship between representations and causes of action for misrepresentation is direct and straightforward. Prosser
    at 728, citing the Restatement of Torts, §525. (See Restatement
    (Second) of Torts §§ 525-530 (1977)).

    5. Case law supports the contention that the use of “warrants” creates
    warranties. (Again, I am not asserting that using the word
    “warrants” is the only way to create warranties or that using the word
    “warrants” is a prerequisite for a cause of action for breach.) For

    Ainger v. Michigan General Corp., 476 F.Supp. 1209, 1225 (S.D.N.Y. 1979), aff’d 632 F.2d 1025 (2d Cir. 1980).

    Century 21, Inc. v. F.W. Woolworth Co., 582 N.Y.S.2d 101, 104 (N.Y. App. Div. 1st Dept.1992).

    Hawkins v. Pemberton, 51 N.Y. 198, 202 (1872).

    Fugazy v. Metromedia Co., 983 F.2d 350, 360 (2d Cir. 1992), abrogated on other grounds by Gustafson v. Alloyd Co., 513
    U.S. 561, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995).

    Pentair, Inc. v. Wisconsin Energy Corp., 662 F.Supp.2d 1134, 1139-40
    (D.Minn. 2009).

    6. Commentary also supports the contention that the use of “warrants” creates warranties.

    Professor Lord (editor of Williston on Contracts) opines that
    “The clearest case of warranty being created is found in oral or written
    warranties denominated as such.” Richard A. Lord, Some Thoughts About Warranty Law: Express and Implied Warranties,
    56 N.D. L. Rev. 4, 514, n. 14 (1980). Stated somewhat more colloquially, if it’s a cigar, call it a cigar.

    To the same effect is an article by George Gleason Bogert, Express Warranties in Sales of Goods,33 Yale L. J. 14, 28, 27 (November 1923) (“The use of the word ‘warrant’ by the
    seller has been held sufficient proof of an intent to warrant.”)

    7. When “warrants” is not used, litigation often ensues. See What Constitutes “Affirmation of Fact” Giving Rise to Express
    Warranty under UCC § 2-313(1)(a), 94 A.L.R.3d 729 (1979).

    8. The existence of remedy provisions does not change the general efficacy of or need for the phrase “represents and warrants.” The CBS contract had an indemnity provision, but CBS still had to demonstrate a misrepresentation or breach of warranty before recovering under it. In addition, although some lawyers go to great lengths to structure contractual remedy provisions to preclude tort remedies, that approach is transaction specific. Many deals cannot afford the
    transaction costs associated with detailed remedy provisions. Instead, they provide for termination and rely on the parties having the rights and remedies afforded by law and equity.

    I look forward to responding fully to your position. No doubt,
    you will have a comment on this post, but my complete reply will be in another forum.

    Tina Stark

    • Tina: My, this comments section is busy!

      I’m happy to have you join me in the marketplace of ideas to discuss this issue. I was disappointed that your 2006 rebuttal (here) didn’t in fact address the points I had attempted to make, so I look forward to a further response.

      In the interim, in case it helps you fine-tune your further rebuttal, here are some quick thoughts of my own in response to your comment. Following up your various leads will take longer.

      Thank you for clarifying what you were implying with that sentence I quoted. It required a deductive leap on my part, and evidently I overshot. But that doesn’t affect my argument, which is that it is pointless and confusing to seek to specify remedies by relying on the one or more verbs you use to introduce a statement of fact.

      That’s the semantics fallacy that I refer to in this post. It’s a Rube Goldberg arrangement that has lawyers and contract-management professionals the world over scratching their heads. It’s far from calling a cigar a cigar (although I think we’re mangling that pseudo-Freud quotation).

      That’s why I say if you’re worried about remedies, then address remedies directly. A sentence would do it, so transaction costs aren’t the issue. And the mass practitioner incomprehension over represents and warrants is by itself a sort of transaction cost.

      Regarding the caselaw you cite, I fully understand that an action for misrepresentation is different from an action for breach of warranty. Cases to that effect don’t necessarily have a bearing on what terminology makes most sense in a contract. For example, it’s been a while since I looked at it, but I’ve seen nothing of relevance in CBS v. Ziff-Davis.

      Furthermore, caselaw and commentary on use of the word warranty on its own is largely irrelevant, because warranty outside of the phrase represents and warrants is an unwieldy word with all sorts of implications that go beyond the use to which drafters put represents and warrants.


    • Thanks to Tina and Ken for the debate on this. I’ve followed along without taking a definitive stand on the issue. And I won’t do so at this time. But Tina’s response presents some excellent fodder for thought. Her point in #5 seems to most directly address Ken’s point about whether use of the word “warrants” is simple magic wordery that should be avoided. But if Tina’s correct in the case law that she cites, I think that we end up with a conclusion that “represents and warrants” is magic wordery that should NOT be avoided. And that is perhaps why practitioners have included it. If a court (or perhaps several courts), in determining whether there is a breach of warranty, takes into account whether a party has called the statement a “warranty,” then it would behoove the practitioner to include that language, whether or not the practitioner agrees with the court’s logic. So it’s not that by saying “represents and warrants” you’re guaranteeing a result that a given statement is a warranty; as Ken notes, there is authority providing that a court might look beyond the magic wordery. But it doesn’t mean that the magic wordery isn’t helpful.

      It’s akin, for example, to case law providing that an acknowledgment of consideration in a contract has a burden-shifting effect in a claim that a contract is void for lack of consideration (which is also a hotly debated issue of late in the contract-drafting community…). Better to “address the consideration issue head on.” But that doesn’t mean that you necessarily foreclose other methods of conveying the parties’ intent.

      I admit that this is one of those instances in which someone might cringe at some courts’ conclusions. But that does not change the fact that they are court conclusions. (I, too, am eager to read the cases that Tina cites.)

      I’ll also admit that I wince when I see lead-ins structured as “represents, warrrants, covenants, and acknowledges…you take your pick as to which category of contract-drafting language any of the following clauses belongs.” The alternative is to separate out “representations” from “warranties.” I supposed that the parties could do so, but it would be an arduous and unrealistic task in at least some transactions (e.g., M&A deals).

      Finally, if Tina and others are correct that there is something to this notion of separately stating that a party “warrants” something, are we dealing with a separate category of contract-drafting language? Perhaps…


      • First, as I stated in my response to Tina, analysis of the words warrants and warranty is a very different matter than analysis of the phrase represents and warrants.

        Second, I expect to look further into the extent to which it’s helpful to use the label warranty in a contract for sale of goods. But even if you assume that it is, that doesn’t mean that you have to use warrants as a verb. It would be simpler and less intrusive to instead use Warranty as a section heading, as I suggest in MSCD 13.745.

        Third, we don’t need a new category of contract language, as represents and warrants serves to introduce statements of fact. That’s language of declaration.

        And fourth, as regards the notion of the recital of consideration being “hotly debated,” the best debate is when what’s being debated is as yet unresolved. As far as I’m concerned, that’s not the case with respect to the recital of consideration, as there’s no prospect of my budging. There’s a lot of misinformation thrown about online. If I’m debating, often it’s just so that my voice is heard in the marketplace of ideas.

  4. Ken,

    After reviewing your correspondence with “Uninterested Observer,” I further note the following:

    Post-CBS, the majority of courts in other states that have addressed the elements of a cause of action for breach of warranty have concurred with the New York court, thereby acknowledging the difference between representations and warranties. (See Grupo Condumex, S.A. v. SPX Corp., 2008 WL 4372678 at *4 (No. 3:99CV7316, N.D. Ohio Sept. 19, 2008) (“Declining to impose an obligation on a party claiming damages for breach of warranty to prove reliance on the warranty conforms to the current views of a majority of other jurisdictions. Mowbray v. Waste Mgmt. Holdings, Inc., 189 F.R.D.
    194, 200 (D. Mass.); see Power Soak Sys. v. EMCO Holdings,
    Inc., 482 F. Supp. 2d 1125, 1134 (W.D. Mo. 2007) (‘The modern trend is that a buyer need not rely on a seller’s express warranty in order to recover for the seller’s subsequent breach of the express warranty.’); Southern Broadcast Group, LLC v. GEM Broadcasting, Inc., 145 F. Supp. 2d 1316, 1321-1324 (M.D. Fla. 2001) (citing cases applying Illinois, Pennsylvania, Connecticut, Montana, New York,
    New Mexico, Indiana, and Massachusetts law); Norcold Inc. v. Gateway Supply Co., 154 Ohio App. 3d 594, 601, 798
    N.E.2d 618 (2003) (also recognizing that a ‘decisive majority of
    courts’ have held that reliance is not an element for claim of breach of

    (Cases holding to the contrary: Hendricks v. Callahan, 972 F.2d
    190 (8th Cir. 1992) (applying Minnesota law); Land v. Roper Corp., 531 F.2d 445 (10th Cir. 1976) (applying Kansas law); Middleby Corp. v.Hussman, 1992 WL 220922 (N.D. Ill. 1992) (applying Delaware law); Kazerouni v. De Satnick, 228 Cal. App.
    3d 871, 279 Cal. Rptr. 74 (2d Dist. 1991). )

    Cases criticizing Hendricks and Land: Giuffrida v. Am. Family
    Brands, Inc., 1998 WL 196402 at *4 (E.D. Pa. Apr. 23, 1998); S. Broad. Group, LLC v. GEM Broad., Inc., 145 F. Supp. 2d 1316, 1321 (M.D. Fla. 2001); Mowbray v. Waste Mgt. Holdings, Inc., 189 F.R.D. 194, 200 (D. Mass. 1999).

    Case criticizing Middleby: Vigertone AG Prods., Inc. v. AG Prods. Inc., 316 F.3d 641, 649 (7th Cir. 2002) (Judge Posner).

    Case distinguishing Kazerouni: Telephia v. Cuppy, 411 F. Supp. 2d 1178 (N.D. Cal. 2006).

  5. I recall some years ago being involved in South Carolina litigation where the requirement for liability was that the representation had to be negligently made. My understanding of warranties is the only question is the truth of the statement. So both representing and warranting gets the recipient a remedy for simple falsehood not generally available for misrepresentations. Has the law changed so much since I researched this topic some years ago?

  6. Ken:
    I wonder if the hang up is not so much about remedies as about evidence. It seems that there is a consensus between you and your opponents that representations and warranties are conceptually different. And that must be right insofar as the common law distinguishes pre-contractual statements from statements that are or become terms of the contract? So does the fuss have something to do with a perceived need to memorialize the pre-contractual statements so that there is an evidence base for a misrep claim down the line without having to be duplicative, i.e. having seller acknowledge that seller made certain statements of fact to buyer pre-contract and then repeat the same statements of fact as express promises/terms? I’m musing out loud rather than taking any position!!

    • I’m not even going to muse aloud on the subject! This exchange has made me realize that rather than just pointing out the shortcomings of represents and warrants, I should address whether, and how, one should go about providing for, or excluding, remedies for inaccurate statements of fact. Check with me in, oh, about a year!

  7. Even worse: I [too often] see an intro that says “X represents, warrants, and covenants….” I’ve now, after reading MSCD, recognized this as saying either (a) the drafter doesn’t know what is going on and is just throwing things against the wall or (b) the drafter hasn’t bothered to separate out reps from covenants (and often mixes in conditions precedent willy-nilly too).

    Separating these into different sections more than makes up in clarity for any modest extra length. And de-doubling covenants and conditions does have real benefits in terms of eliminating potential damages if the item is turned into just a condition.

    • I’m currently dealing with a contract that uses that kitchen-sink approach.

      Incidentally, I’d be careful about referring to something as “just a condition.” Depending on the circumstances, failure to satisfy a condition can have more drastic consequences than would failure to comply with an obligation.

  8. I am very late to this party … I understand all that is said below. However, in my simple way of looking at this, use of “represents and warrants” merely means that one represents as true right now and warrants that such fact (or status) shall remain so for a period (or uncertain duration) of time.

    As attorney for a major services provider there may be matters I want to represent to a client but do not want to warrant and vice-versa. There may also be matters I wish to have my company represent and warrant.

    For matters I wish us to represent but not warrant, I think clear language can/should be used to establish that the statement of fact is a representation utilized to give the other party knowledge of a fact or the status of a matter up until the time the contract is entered – but not longer. For matters which are warranted only, I believe the statement can be made clearly (i.e. the services will be delivered in a workmanlike manner, using industry standards, or other more specific warranties may be given). For matters that we represent to be true (or the status of a matter) AND which we will stand behind after execution, then “represents and warrants” may be appropriate.

    After reading all this, as well as other articles that say (in essence) reps and warranties are interchangeable, meaning the same thing, I have a good mind to suggest to my General Counsel we add definitions in our defined terms to make it crystal clear what is meant by “Service Provider Representations” and “Service Provider Warrants”. If these terms are contractually defined, is someone going to continue telling me they are interchangeable or one in the same? I certainly hope not!

  9. I am very late to this party … I understand all that is said below. However, in my simple way of looking at this, use of “represents and warrants” merely means that one represents as true right now and warrants that such fact (or status) shall remain so for a period (or uncertain duration) of time.

    As attorney for a major services provider there may be matters I want to represent to a client but do not want to warrant and vice-versa. There may also be matters I wish to have my company represent and warrant.

    For matters I wish us to represent but not warrant, I think clear language can/should be used to establish that the statement of fact is a representation utilized to give the other party knowledge of a fact or the status of a matter up until the time the contract is entered – but not longer. For matters which are warranted only, I believe the statement can be made clearly (i.e. the services will be delivered in a workmanlike manner, using industry standards, or other more specific warranties may be given). For matters that we represent to be true (or the status of a matter) AND which we will stand behind after execution, then “represents and warrants” may be appropriate.

    After reading all this, as well as other articles that say (in essence) reps and warranties are interchangeable, I have a good mind to suggest to my General Counsel we add definitions in our defined terms to make it crystal clear what is meant by “Service Provider Represents” and “Service Provider Warrants”. If these terms are contractually defined, is someone going to continue telling me they are interchangeable or one in the same? I certainly hope not!

      • I’ve read your article. My view of the matter seems to be nearer the English than the American view. My point is simple … if I wish for my client to represent something as a fact up until the time of contracting, then I’ll make it clear that is all they are agreeing to do. If the fact will be sustained for some period (or indefinitely) after entering the agreement, then the client will warrant the matter to remain true for such duration.

        I am clear on the trend. It does not mean I have to fall prey to what seems to be the inability of others to distinguish between that which is represented to be true as an inducement to contract (financial condition, past sales, corporate good standing, etc.), versus that which a party may represent as true and agree to maintain the truth of (non-infringement, workmanlike services, etc.).

        I agree the use of “states” (or other terms indicating the representing party is merely stating a status of fact) and addressing remedies directly is a more clean approach. While I did not address clarification of remedies in my initial comment above, I believe the remainder of what I expressed does “make sense” in so far as I propose drafting in a manner that distinguishes and sets apart that which is merely represented as an existing status of a matter (present fact) versus that which will be warranted in some manner in the future by a party. Perhaps I did not think though my response thoroughly enough and plug every hole.

        Go Navy!

        • Please excuse my being slow to respond.

          You’re attempting to address with inscrutable verb-structure distinctions what are in fact different categories of contract language, namely language of declaration and language of obligation. If you don’t know what I’m referring to, perhaps you haven’t read MSCD chapter 3.


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