contract-law legal-terms
Is everything in a contract really a term or warranty?
<p>In <a href="https://law.stackexchange.com/questions/9441/is-there-a-name-for-the-part-of-a-contract-that-specifically-deals-with-how-the?noredirect=1#comment17626_9441">another question</a> it was claimed that everything in a contract is a term or warranty. It has got to be more complicated than that. For example is the title of the contract a term? Is the execution line "sign below to agree to the terms" a term in itself? If the contract includes a statement of the number of terms in it or contact information, presumably these wouldn't be terms.</p>

<p>What exactly is a term and what is not?</p>

<p>An example of the distinction is <a href="https://en.wikipedia.org/wiki/Bettini_v_Gye" rel="nofollow">Bettini v Gye</a> (1876) 1 QBD 183, where Bettini agreed to perform in London between March 30 to July 13 1875 and was supposed to be in London 6 days before rehearsals. He arrived on March 28 ready to perform but Gye refused to accept the performance. The court held that arriving 6 days before was not a "condition" (term) of the contract, so breach did not "go to the root of the contract". The contract did not state anything like "if you are not here 6 days before the contract is cancelled". The court made this distinction:</p>

<blockquote>
  <p>Parties may think some matter, apparently of very little importance,
  essential; and if they sufficiently express an intention to make the
  literal fulfilment of such a thing a condition precedent, it will be
  one; or they may think that the performance of some matter, apparently
  of essential importance and primâ facie a condition precedent, is not
  really vital, and may be compensated for in damages, and if they
  sufficiently expressed such an intention, it will not be a condition
  precedent.</p>
</blockquote>

<p>Breach of a condition allows the offended party to repudiate the contract, but breach of a warranty does not enable a contract to be repudiated. The <a href="http://www.legislation.gov.uk/ukpga/1979/54/part/II" rel="nofollow">Sale of Goods Act 1979</a> section 11 encodes the distinction thus:</p>

<blockquote>
  <p>Whether a stipulation in a contract of sale is a condition, the breach
  of which may give rise to a right to treat the contract as repudiated,
  or a warranty, the breach of which may give rise to a claim for
  damages but not to a right to reject the goods and treat the contract
  as repudiated, depends in each case on the construction of the
  contract; and a stipulation may be a condition, though called a
  warranty in the contract</p>
</blockquote>

<p>In other words, you can tell if something is a term vs. a warranty if there is a breach and you try to repudiate the contract, and the court says "No you can't do that", and that's how you know that it was a warranty and not a term. (There are probably better ways, but it's like Fair Use in its subjectivity).</p>
