CHAPTER VI. 



Eepresenta- 

 tion intended 

 as a warrant}'. 



Recommenda- 

 tion of the 

 seller. 



Affirmation as 

 to value. 



Distinction 

 between a 

 warranty and 

 a representa- 

 tion. 



WABKANTY DISTINGUISHED FROM EEPEESENTATION. 



It is sometimes not very easy to determine whether an 

 action for breach of warranty should be brought against 

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

 by an action for misrepresentation, the rule of law being 

 that every affirmation at the time of sale of personal 

 chattels is a warranty, provided it appears to have been so 

 intended (a). 



In many cases, however, even the positive recommenda- 

 tion 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 generally 

 capable of forming an opinion (b) ; the rule being, cotn- 

 mendatio simplex non obligat. 



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 have bought the goods 

 on the faith of such recommendation {b). 



The distinction between a warranty and representation is 

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

 and was also laid down by Chief Justice Best, in the fol- 

 lowing case. An action of assumpsit was brought on the 

 warranty of a horse ; no direct evidence was given of what 

 took place when the contract was made, but letters passed 

 between the plaintiff and defendant, in which the plaintiff 

 writes, " You well remember that you represented the 

 horse to me as five years old;" to which the defendant 

 answers, " The horse is as I represented it." Chief 

 Justice Best said, "The question is, whether I and the 



(a) Smith's Leading Cases, 9th ed. 

 188 ; Power t. Barham, 4 A. & E. 

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

 240 ; Freeman v. Baker, 2 N. & M. 

 446. 



{}) Chandelor v. Lopus, Cro. Jac. 



4; Eol. Abr. 101. 



(e) Goram v. Sweeting/, 2 "Wms. 

 Saund. 200 c. ; and see per Martin, 

 B., Benham v. United Guarantee Co., 

 7 Ex. 753. 



