WARRANTY, etymologically, another form of GUARANTEE (q.v.). It is used, however, in a rather different sense. The sense common to both words is that of the collateral contract. A "war ranty" expresses the collateral responsibility of the principal actor, while "guarantee" expresses that of his surety. It differs from a condition in that a condition forms the basis of the contract and a breach of it discharges from the contract, and from a representa tion in that the latter does not affect the contract unless made a part of it expressly, or by implication as in contracts of insurance and other contracts uberrimae fidei, or unless it be fraudulent. These distinctions are not always maintained. Thus in the Real Property Act 1845, s. 4, condition seems to be used for warranty.
Warranty as it affected the law of real property was, before the passing of the Real Property Limitation Act 1833 and the Fines and Recoveries Act 1833, a matter of the highest importance. A warranty in a conveyance was a covenant real annexed to an estate of freehold, and either expressed in a clause of warranty or implied in cases where a feudal relation might exist between feoffor and feoffee. The warranty, as described by Littleton, s. 364b, 697, was an outgrowth of feudalism, and something very like it is to be found in the Liber Feudorum. At the time of Glan vill the heir was bound to warrant the reasonable donations of his ancestor. Warranty was one of the elements in Bracton's defini tion of homage, 78b, "juris vinculum quo quis astringitur ad warrantizandum defendendum et acquietandum tenentem suum in seisina versus omnes." For an express warranty the word war rantizo or warrant was necessary. The word "give" implied a war ranty, as did an exchange and certain kinds of partition. In order to bind heirs a clause of warranty was required. This was either lineal, collateral or commencing by disseisin. The feoffor or his heirs were bound by voucher to warranty or judgment in a writ of warrantia chartae to yield other lands to the feoffee in case of the eviction of the latter. Vouching to warranty was a part of the old fictitious proceedings in a common recovery in use for the purpose of barring an entail before the Fines and Recoveries Act. War ranty is now superseded by covenants for title. The more usual of these are now by the Conveyancing Act 1881 deemed to be implied in conveyances. For the implied warranties of title and quality see SALE OF Goons. Vouching to warranty was at one time im portant in the law of personalty as well as of realty. Warranty, as it exists at present in the law of personalty, is either express or implied. The principal cases of implied warranty occur in the con
tracts of sale and insurance. There is also an implied warranty in other kinds of contract, e.g., of seaworthiness by the shipowner in a contract between him and a charterer for the hire of a ship. In all cases of implied warranty the warranty may be excluded by the special terms of the contract. For breach of warranty an action may be brought directly, or the breach may be used as ground for a counter claim or for reduction of damages, Uut the breach will not in the case of a warranty proper entitle the person suffering by it to a rescission of the contract. Thus in a sale the property passes although the warranty be broken. In some cases warranties on sale are the subject of statutory enactments, as the Merchan dise Marks Acts and the Sale of Food and Drugs Acts.
Scotland.—Warranty is a term imported into Scots law in con nection with mercantile law. Differing from the English interpre tation it signifies a material condition of the contract, breach of which discharges from the contract in the option of the other party (see Sale of Goods Act 1893, ss. 53 [5] and 62 [1] ). The term native to Scots law is "warrandice." It occurs in connection with deeds transferring land or discharging obligations, and is in the form of a warranty by the grantor that his title is good. War randice is either real or personal. Real warrandice is that whereby warrandice lands are made over, as indemnity for those conveyed, to assure the person to whom they were conveyed from loss by the appearance of a superior title. Real warrandice is implied in ex cambion or exchange of lands. Its effect is that the excamber, in case of eviction, may recover possession of his original lands. Personal warrandice is either express or implied. There is an im plied warrandice in every onerous deed. Express warrandice may be either simple, against the future acts of the grantor; from fact and deed, against the grantor's own acts whether past or future; or absolute, i.e., against acts and deeds whether (a) of the grantor or (b) of a third prior to the date of the deed. A clause of war randice is the Scottish equivalent of the English covenants for title. By the Titles to Land Consolidation (Scotland) Amendment Act 1869 a clause of warrandice in the form given in the schedule to the act imports absolute warrandice as regards the lands and the title-deeds thereof, and warrandice from fact and deed as re gards the rents.