KFLCC Kingdom Law 2nd Ed.

1220

WARRANTOR

WARRANTY

"WARRANTOR.

One who makes a war

expressed In the contract or capable of be ing annexed to it, on the strict and literal truth or performance of which the liability of the underwriter is made to depend. Maude In the law of in surance, warranties may be either affirmative or promissory. Affirmative warranties may be ei ther express or implied, but they usually con sist of positive representations in the policy of the existence of some fact or state of things at the time, or previous to the time, of the making of the policy; and they are, in general, condi tions precedent, which, if untrue, whether ma terial to the risk or not, the policy does not at tach, as it is not the contract of the insurer. Maupin v. Insurance Co., 53 W. Va. 557, 45 Sw E. 1003; Hendricks v. Insurance Co., 8 Johns. (N. Y.) 1; Cowan v. Insurance Co., 78 Cal. 181, 20 Pac. 408.— Collateral warranty, in old conveyancing, was where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Thus where a younger brother released to his father's dis seisor, with warranty, this was collateral to the elder brother. The whole doctrine of col lateral warranty seems repugnant to plain and unsophisticated reason and justice; and even its technical grounds are so obscure that the ablest legal writers are not agreed upon the subject. Wharton. Micheau v. Crawford, 8 N. J. Law, 106 —Continuing warranty. One which applies to the whole period during which the contract is in force; e. g., an undertaking in a charter-party that a vessel shall continue to be of the same class that she was at the time the charter-party was made.— Covenant of warranty. See COVENANT.— Express -warranty. In contracts and sales, one created by the apt and explicit statements of the seller or person to be bound. See Borrekins v. Bevan, 3 Rawle (Pa.) 36, 23 Am. Dec. 85; White v. Stelloh, 74 Wis. 435, 43 N. W. 99; Danforth v. Crookshanks, 68 Mo. App. 316. In the law of insurance, an agreement expressed in a policy, whereby the assured stipulates that cer tain facts relating to the risk are or shall be true, or certain acts relating to the same sub ject have been or shall be done. 1 Phil. Ins. (4th Ed.) p. 425; Petit v. German Ins. Co. (C. C.) 98 Fed. 802; JEtna Ins. Co. v. Grube, 6 Minn. 82 (Gil. 32); Insurance Co. v. Morgan, 90 Va. 290, 18 S. E. 191.— General warranty. The name of a covenant of warranty inserted in deeds, by which the grantor binds himself, his heirs, etc., to "warrant and forever defend" to the grantee, his heirs, etc, the title thereby con veyed, against the lawful claims of all persons whatsoever. Where the warranty is only against the claims of persons claiming "by, through, or under" the grantor or his heirs, it is called a "special warranty."— Implied warranty. A warranty raised by the law as an inference from the acts of the parties or the circumstances of the transaction. Thus, if the seller of a chattel have possession of it and sell it as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. 2 Kent, Comm. 478. A warranty implied from the gen eral tenor of an instrument, or from particular words used in it, although no express warranty is mentioned. Thus, in every policy of insurance there is an implied warranty that the ship is sea worthy when the policy attaches. 3 Kent Comm. 287; 1 Phil. Ins. 308.— Lineal war ranty. In old conveyancing, the kind of war ranty which existed when the heir derived title to the land warranted either from or through the ancestor who made the warranty.— Person al warranty. One available in personal ac tions, and arising from the obligation which one has contracted to pay the whole or part of a debt due by another to a third person. Flan- & P. Shipp. 377; Sweet. —Affirmative warranty.

ranty. Shep. Touch. 181.

Warrantor potest eaccipere quod que reus non tenet terrain de qua petit war rantiam, et quod donnm fnit insuffieiens. Hob. 21. A warrantor may object that the complainant does not hold the land of which he seeks the warranty, and that the gift was insufficient. In real property law. A real covenant by the grantor of lands, for himself and his heirs, to warrant and defend the title and possession of the estate granted, to the grantee and his heirs, whereby, either upon voucher, or judgment in the writ of warrantia chartw, and the eviction of the grantee by paramount title, the grantor was bound to recompense him with other lands A war ranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. A warranty js an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. Civ. Code Cal. f 1763. In contracts. An undertaking or stipu lation, in writing, or verbally, that a certain fact in relation to the subject of a contract is or shall be as it Is stated or promised to be. A warranty differs from a representation in that a warranty must always be given contem poraneously with, and as part of, the contract; whereas a representation precedes and induces to the contract. And, while that is their dif ference in nature, their difference in conse quence or effect is this: that, upon breach of warranty, (or false warranty,) the contract re mains binding, and damages only are recov erable for the breach; whereas, upon a false representation, the defrauded party may elect to avoid the contract, and recover the entire price paid. Brown. The same transaction cannot be characterized as a warranty and a fraud at the same time. A warranty rests upon contract, while fraud, or fraudulent representations have no element of contract in them, but are essentially a tort. When judges or law-writers speak of a fraudu lent warranty, the language is neither accurate nor perspicuous. If there is a breach of war ranty, it cannot be said that the warranty was fraudulent, with any more propriety than any other contract can be said to have been fraud ulent, because there has been a breach of it. On the other hand, to speak of a false represen tation as a contract or warranty, or as tend ing to prove a contract or warranty, is a per version of language and of correct ideas. Rose v. Hurley, 39 Ind. 81. In Insurance. In the law of insurance, "warranty" means any assertion or under taking on the part of the assured, whether WARRANTY. of equal value. Co. Litt. 365a. In sales of personal property.