Construing the written warranty

Kumar, Manasi and Pant, Nistha (2022) Construing the written warranty. Liverpool Law Review, 43 (2). pp. 361-388. ISSN 0144-932X

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In common law, the question of whether the express warranty is one that sounds in contract or tort has been a question of some debate. This question is not one of mere academic or historical interest, but an urgent one even today. Its contemporary rel evance is most apparent in the US, where the discussions around the tortious roots of the warranty are found in the current debates around “sandbagging”, which is concerned with whether a buyer has to prove that it actually relied upon the truth of the written warranty expressly incorporated into a commercial contract. This paper demonstrates that it is unjustifed to require a showing of reliance with respect to the written warranty, which was even historically understood as simply a term of the contract, subject to a contract construction approach. Instead, the only appropriate role for a buyer’s pre-contractual knowledge of falsity is to serve as a relevant factor in evaluating the parties’ intention regarding the scope of the written warranty – an approach followed by UK courts, which have for over a century cast the warranty as a creature of contract. It is, however, pointed out that there are dangers presented by trying to create too much of a divide between the law of contract and tort with respect to the warranty, as demonstrated by a contemporary line of cases in the UK High Court, because the creation of artifcial bright-line rules actually undermines a robust inquiry into the parties’ intentions

Item Type: Article
Keywords: Express warranty | US | UK | Sandbagging |Reliance
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 04 Jun 2022 04:32
Last Modified: 19 Sep 2022 06:13
Official URL:


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