( 138 ) 



CHAPTER VI. 



WARRANTY DISTINGUISHED FROM REPRESENTATION. 



"Waeeanty distinguished feom 

 Representation. 

 Jieprescnfation intended as a JVar- 



ranty 138 



Recommendation of the Seller . . id. 



^'iJflrDiation as to Value id. 



Distinction between a IVarrantij 



and a Representation id. 



Where a Representation amounts 



to a Warranty 139 



Question to be put to the Jury . . 140 



Rule as to Warranty and Repre- 

 sentation 141 



Mere Expression of Opinion .... id. 

 Selling according to Pedigree . . id. 

 Partly a Warranty and partly a 



Representation id. 



The Jury must decide between a 



Warranty and Representation 142 



Percival v. Oldacre 143 



Judgment in Behn v. Burncss. . id. 

 Counterfeit Trade Marks 145 



Representa- 

 tion intended 

 as a "War- 

 ranty. 



Recommen- 

 dation of the 

 seller. 



Aifirmation as 

 to value. 



Distinction 

 between a 

 Warranty and 

 a Representa- 

 tion. 



WARRANTY DISTINGUISHED FROM REPRESENTATION. 



It is sometimes not very easy to determine wliether an 

 action for breach of Warranty should he brought against 

 the vendor of a chattel, or whether the proper remedy be 

 by an action for Misrepresentation, the Bule of law being 

 that every afhrmation at the time of sale of personal 

 chattels is a AVarranty, provided it appears to have been 

 so intended {a) . 



In many cases, however, even the positive Recom- 

 mendation of the seller is not, from the nature of the case, 

 to be regarded as a Warranty, but merely as an expression 

 of his belief or opinion on a matter of which he can have 

 no certain knowledge, and on which the purchaser is gene- 

 rally capable of forming an opinion {b) ; the Eule being, 

 Commendatio simf)lex non ohlicjat. 



Therefore a simple Affirmation or Assertion by the ven- 

 dor, as to the value or quality of his goods, does not 

 amount to a Warranty, unless it be made and received as 

 such, although the purchaser may liave bought the goods 

 on the faith of such Eecommendation ih). 



The distinction between a Warranty and Bej)resentatio)i 

 is pointed out in a note to the case of Goram v. Sweeting (c), 



[(i) Smith's Leading Cases, 7tli 

 ed. 174 ; Pouer v. Barham, 4 A. & 

 E. 473 ; Shephard v. Kain, 5 B. & 

 Aid. 240 ; Freeman v. Baker, 2 N. 

 & M. 446. 



{b) Chandelor v. Lojms, Cro. Jac. 

 4; Rol. Abr. 101. 



{c) Goram v. Sweeting, 2 Wms. 

 Saund. 200 c ; and see per Martin, 

 B., Benham v. United Guaruntee Co., 

 7 Ex. 753. 



