1902 Encyclopedia > Warranty


WARRANTY is etymologically another form of GUARANTEE (q.v.). It is used, however, in a rather different sense. The sense common to both words is that of a collateral contract, under which responsibility for an act is incurred, and for the breach of which an action for damages lies. Warranty generally expresses the responsi-bility of the person doing the act, guarantee the responsi-bility of some other person on his behalf. A warranty may be defined, in the words of Lord Abinger, as "an express or implied statement of something which the party undertakes shall be part of the contract, and, though part of the contract, collateral to the express object of it " (Chanter v. Hopkins, 4 Meeson and Welsby's Reports, 404). It differs from a condition in that a condition forms the basis of the contract and a breach of it discharges from the contract, and from a representation in that the latter does not affect the contract unless made a part of it expressly or by implication, as in contracts of insurance and other contracts uberrima}jidei, or unless it be fraudulent. These distinctions are not always accurately maintained. Thus in 8 and 9 Vict. c. 106, § 4, condition seems to be used for warranty.
Warranty as it affected the law of real estate was, up to half a century ago, a matter of the highest importance. A warranty in a conveyance was a covenant real annexed to an estate of freehold, and either expressed in a clause of warranty or implied in cases where a feudal relation might exist between feoffor and feoffee. The warranty, as described by Littleton, § 697, was an outgrowth of feudalism, and something very like it is to be found in the Liber Feuclorum. At the time of Glanvill the heir was bound to warrant the reasonable donations of his ancestor. Warranty was one of the elements in Bracton's definition of homage, 786, "juris vin-culum quo quis astringitur ad warrantizandum defendendum et acquietandum tenentem suum in seisina versus omnes." For an express warranty the word warrantizo or warrant was necessary. The word "give" implied a warranty, as did an exchange and certain kinds of partition. In order to bind heirs a clause of warranty was required. This was either lineal, collateral, or commencing by disseisin. The differences between the three kinds were very technical, and depended on abstruse and obsolete

learning. They are treated at great length in old works on real property, especially Coke upon Littleton by Butler, 3646. The feoffor or his heirs were bound by voucher to warranty or judg-ment in a writ of warrantia chartse to yield other lands to the feoffee in case of the eviction of the latter. Vouching to warranty was a part of the old fictitious proceedings in a common recovery in use for the purpose of barring an entail before the Fines and Recoveries Act (see ENTAIL). Warranty of this nature, as far as it relates to the conveyance of real estate, though not actually abolished in all possible cases, is now superseded by covenants for title. The more usual of these are now by the Conveyancing Act,' 1881, deemed to be implied in conveyances (see REAL ESTATE). For the implied warranties of title and quality see SALE. Vouch-ing to warranty was at one time important in the law of personalty as well as of realty. The procedure is fully described in Glanvill. The right of calling on the holder of lost or stolen goods to vouch to warranty (interciare), i.e., to give up the name of the person from whom he received them, under pain of forfeiture, was often granted under the name of theam as a local franchise (see THEFT). Warranty, as it exists at present in the law of personalty, is either express or implied. There is no general rule as to what constitutes a warranty. It is not necessary that an express warranty should be in writing, the law being that every affirmation at the time of sale of personal chattels is a warranty, provided that it appears to have been so intended. The principal cases of implied warranty occur in the contracts of sale and INSURANCE (q.v.). There is also an implied warranty in other kinds of contract, e.g., of seaworthiness by the shipowner in a contract between him and a charterer for the hire of a ship. In all cases of implied warranty the warranty may be excluded by the special terms of the contract. For breach of warranty an action may be brought directly, or the breach may be used as ground for a counter claim or for reduction of damages, but the breach will not in the case of a warranty proper entitle the person suffering by it to a rescission of the contract. Thus in a sale the property passes although the warranty be broken. In some eases warranties on sale are the subject of statutory enact-ments. By the Merchandise Marks Act, 1887, a vendor is deemed to warrant that the trade mark or trade description on any goods sold is genuine. The Chain Cables and Anchors Act, 1874, enacts that every contract for the sale of a chain cable shall (in the absence of any stipulation to the contrary) imply a warranty that the cable has been duly tested and stamped. In some other Acts, such as the Bills of Exchange Act, 1882, the term warranty does not occur, but the practical effect is the same.
Scotland.—The term corresponding to warranty in the law of heritable property is "warrandice." Warranty, strictly speaking, seems confined to movables. Warrandice appears early in Scots law, the heir by Regiam Majestatcm being bound to warrant the reasonable donations of his ancestor. Warrandice in the existing law is either real or personal. Real warrandice is that whereby warrandice lands are made over, as indemnity for those conveyed, to assure the person to whom they were conveyed from loss by the appearance of a superior title. Real warrandice is implied in ex-cambion. Its effect is that the excamber, in case of eviction, may recover possession of his original lands. This is not in accordance with the English law in exchange. Personal warrandice is either express or implied. There is an implied warrandice in every onerous deed, and an absolute warrandice presumes an onerous consideration. Express warrandice is either simple, against the future acts of the vendor, from fact and deed, against acts whether past or future, or absolute, or against all deadly, that is, on any ground existing before the sale. A clause of warrandice is the Scottish equivalent of the English covenants for title. By 32 and 33 Vict. c. 116 a clause of warrandice in the form given in the schedule to the Act imports absolute warrandice as regards the lands and the title-deeds thereof, and warrandice from fact and deed as regards the rents. For the warranty in the sale of mov-ables see SALE.
United States.—Warranty in conveyances of real estate is ex-
pressly abolished by statute in many States. In some States
warranty is implied on the transfer and indorsement of negotiable
instruments. (J. Wf.)

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