44 WARRANTY AND REPRESENTATION. 



quiet, shied at meeting stage coaches, but was cured shortly 

 after rejection, the purchaser was held entitled to reject and 

 obtain repetition of the price, (a) 



It is always a question for a jury, or a judge in his jury 

 capacity, to determine whether a representation comes up to 

 a warranty, and this is to be inferred from the nature of the 

 sale, and the circumstances of each case. (6) 



Warranties are of various kinds. According to their 

 scope, they are "general" or " special. "(c) A general 

 warranty is such as is implied in the contract of sale, or it 

 may be indicated by such a word as " warranted" ; and it is 

 an undertaking that a horse is what the party professes 

 it to be ; and, in such a sense, is distinguished from a 

 special Avarranty which refers to a particular matter, such as 

 age,((?) for example. According to their constitution, they 

 are express or implied. An express warranty is a warranty 

 strictly limited by its terms ; whether these relate to sound- 

 ness or freedom from vice, or anything else ; while an 

 implied warranty refers to the merchantable quality of 

 fitness for work when a full price is given, or to fitness for a 

 special purpose, (f^) 



38. Distinction between Representation and War- 

 ranty. (/) — The main distinction between a representation 

 and a warranty is thus stated by Tindall, C.J. : — " In the 

 case of a representation to render liable the party making it, 

 the facts stated must be untrue to his knowledge ; but in 

 the case of a warranty he is liable Avhether they are in his 

 knowledge or not."(<j) A man may represent his horse as a 



(a) Bcrjhk V. Robertson, 1S28, 6 S. 1014. 

 (h) B.C. i. 466. 



(c) Oliphant, pp. 117, 118. See also B. Pr. 111. 



(d) § 42. Jones v. Coivley, 1825, 4 B. and C. 445 ("E.xcept a kick on the 

 leg") ; Henninrj v. Parry, 1834, 6 C. and P. 580 (Warranty "except one foot"). 



(e) As to the meaning of an express warranty in the Mercantile Law Amend- 

 ment Act, see § 39, p. 50. 



(/) On this subject generally see B.C. i. 466, n, and the judgment of AVilliams, 

 J., in Bchn v. Burncss, 1863, 32 L.J., Q.B. 204. 

 (o) Badd V. Fairiuancr, 1831, 5 C. and P. 78. 



