144 WARRANTY DISTINGUISHED FROM REPRESENTATION. 



of Representation as distinguislied from Warranty. He 

 said, " Properly speaking, a rej)resentation is a state- 

 " ment or assertion made by one party to tlie other, be- 

 " fore or at the time of the conti-act, of some matter or 

 " circumstance relating to it. Although it is some thing 

 " contained in a written instrument, it is not an integral 

 " part of the contract, and consequently the contract is 

 " not broken, although the representation proves to be 

 " untrue nor (with the exception of the case of policies 

 " of insiu-ance, or at all events marine policies, which 

 " stand upon a peculiar and anomalous footing) is such" 

 " untruth any cause of action, nor has it any efficacy 

 *' whatever, unless the representation was made fraudu- 

 " lently, either by reason of its being made with a know- 

 " ledge of its untruth, or by reason of its being made dis- 

 " honestly, or with a reckless ignorance whether it was 

 " true or untrue (2). If this be so, it is difficult to un- 

 " derstand the distinction which is to be found in some 

 " of the treatises, and is in some degree sanctioned by 

 " judicial authority (a), that a representation, if it differs 

 " from the truth to an unreasonable extent, may affect 

 " the validity of the contract. Where, indeed, a repre- 

 " sentation is so gross as to amount to sufficient evidence 

 " of fraud, it is obvious that the contract on that ground 

 " is voidable. Although representations are not usually 

 " contained in the written instrument of contract, yet 

 " they sometimes are, but it is plain that their insertion 

 " therein cannot alter their natiu-e. A question, however, 

 " may arise whether a descriptive statement in a "WTitten 

 " statement is a mere representation, or whether it is a 

 " substantive part of the contract. This is a question of 

 " construction, which the Com-t and not the Jury must 

 " determine. 



" But with respect to statements in a contract descrip- 

 " tive of the subject-matter of it, or of some material 

 " incident thereof, the true doctrine established by prin- 

 " ciple as well as by authority appears to be, generally 

 " speaking, that if such descriptive statement was in- 

 " tended to be a substantive part of the contract {b), it 

 " is to be regarded as a Warranty, that is to say, a 

 " condition on the failure or nonperformance of which 

 " the other may, if he be so minded, repudiate the con- 

 " tract in tofo, and so be relieved from performing his 



(2) EUiotty.ron Glehen, 18 L. J., («) Barker v. JJ'inclle, 6 El. & Bl. 



Q. B. 221 ; Wheelton v. Ilardisty, 675, G80. 

 27 L. J., Q. B. 241. {b) Foster v. Smith, 18 C. B. 156. 



