A warranty is a less important term which is incidental to the main purpose of the contract. Failure to observe it does not cause the whole agreement to collapse; but consequently the innocent party may claim damages for its breach but is not allowed to treat the contract as repudiated. If the washing machine supplied to James works but looks shoddy owing to damage to the exterior casing caused during delivery by Bernard, a claim for damages may take the form of a reduction in the purchase price, probably by mutual agreement between the two parties.
Compare the following two cases.
• Poussard v Spiers (1876)
A soprano, Madame Poussard, agreed to sing in a series of operas for Spiers. She failed to appear on the opening night and Spiers …show more content…
• The clause must be clear and precise; any vagueness will be construed against the party relying on it.
The common law test-incorporation in the contract
It must be shown that the party who is to be bound by the clause did in fact genuinely agree to it (there was no fraud or misrepresentation). If he signed a contractual document in which the clause is included he will generally be treated as having agreed to it even if he did not read the document. L’Estrange v Graucob (1934).
The owner of the café bought a cigarette vending machine and signed a contract of sale which he did not read, and which contained the clause ‘any express or implied condition, statement or warranty, statutory or otherwise, not stated herein is hereby excluded’. The machine was defective.
Held: She was unable to recover the price or obtain damages. She was bound by the clause as she signed she contract.
If the document was not signed then the offeree is not bound if it can be shown that he did not know the documents contained terms of the contract, or that reasonable notice of those terms was not given to
Compare the following two cases.
• Poussard v Spiers (1876)
A soprano, Madame Poussard, agreed to sing in a series of operas for Spiers. She failed to appear on the opening night and Spiers …show more content…
• The clause must be clear and precise; any vagueness will be construed against the party relying on it.
The common law test-incorporation in the contract
It must be shown that the party who is to be bound by the clause did in fact genuinely agree to it (there was no fraud or misrepresentation). If he signed a contractual document in which the clause is included he will generally be treated as having agreed to it even if he did not read the document. L’Estrange v Graucob (1934).
The owner of the café bought a cigarette vending machine and signed a contract of sale which he did not read, and which contained the clause ‘any express or implied condition, statement or warranty, statutory or otherwise, not stated herein is hereby excluded’. The machine was defective.
Held: She was unable to recover the price or obtain damages. She was bound by the clause as she signed she contract.
If the document was not signed then the offeree is not bound if it can be shown that he did not know the documents contained terms of the contract, or that reasonable notice of those terms was not given to