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One who makes a warranty. Shep. Touch. 181.

Warrnntur potest exclpere qund que- rens non tenet terrmn do qua pctit warrantiam, et qnnd donnm fnit insufficiens. A wnrrantor may object that the complainant does not hold the land of which he seeks the warranty, and that the gift was insulhcient.

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 giantee and his heirs whereby, either upon voucher, or judgment in the writ of imn-antic chnrtcz, and the eviction of the griiitec by paramount title, the grantor was imiiud to recompense him with other lands of equal value. 0. Lltl: 365a.

In sales of personal property. A Wat‘-

r.int_v is a statement or repre-sontution made

by the seller of goods. contemporaneously with and as a part of the contract of sale, tiiniigh collateral to the express object of it, haiing reference to the character, quality, or title or 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 is an engagement by which ll seller assures to a buyer the existence of some fact affecting the tianstiction, whether past, present, or future. Clv. Code Cal, 5 1763.

In contracts. An undertaking or stipu- lation, in writing, or verbally’ ‘shat 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 contemporaneously with, and as part of, the contract; ulicri-as a representation precedes and induces to the contract. And, while that is their difference in nature, their difference in conse- quence or elIect is this: that, upon breach of warranty. (or false warranty.) the contract rc- ni.-iins binding, and damages only are recoverable for the breach; whereas. upon 1 false representation, the defrauded party may elect

wto amid the contract, and recover the entire

price paid. Brown.

'1he same transaction cannot be characterized as (L viarrsnty and a fraud at the sume time. A warranty rests upon contract, while fraud, or fraudulent representations have no element of contract in them, but are essentiaily a tort. When judges or law-writers speak of a fraudu- ient vrsrrnnty, the lzmgiiage is neither accurnts nor perspicuous. If there is a breach of warranty, it cannot be said that the warranty was friiudulcnt, with any more propriety than any other contract can be said to bare been fraud- ulent. bocanse there has been a breach of it. On the other hand. to speak of a false representutinn as s contract or warranty, or as tending to prove a contract or warranty. is a per- version of lanmiage nild of correct ideas. Rose

V. Huncy. 39 Ind. 8

In insurance. In the law of insurance, "narninty" means any assertion or undertaking on the part of the assured, whether

1220

WARRANTY

expressed in the contract or capable of lieing annexed to it. on the strict and literal truth or performance of which the linbiiity of the underwriter is made to depend. lllnude 5. P. Shipp. 377; Sweet.

—Afiirmative warranty. In the law of iii- surance, u srranties may be either afliriimtive or promissory. Alfirmatii-e warranties may he ei-

r express or implied, but they usually consist of positive representations in the policy of the existence of some fact or state of thins: at the time, or previous to the time, of the making of the poiic ; and they are, in general, conditions prccedent, which, if untrue. vrliether mnterial to the risk or not, the policy does not attach, as it is not the contract of [be in=.urnr. Muupin v. Insurance 00., 53 W. V '. 4' S. E. 1003' ' (N. Y.) I; Cowan v. Insurance Co.. . 20 Pm‘. 408.—Colla.tern.l 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 brotber released to his father's disseisor, with viarranty, this was ccllnternl no the elder brother. '1‘he whole doctrine of coliuteral warranty seems repugnant to plain and unsophisticated reason and justice: and even its technical grounds are so obscure that the iiblcst legal writers are not greed upon the subject. Wharton. lllicheau. Crawford, SN. J. Law, 0G.—Cnntinning warranty. One which applies to the whole period during which the contract is in force; s. 1]., an undertaking in a charLer—psrty that a vessel shall continue to be of the same class that siie vias at the time the charter-party was niade.—Covensnt of warranty. ee C0vEi~uiN'r.—Expre.-.s warranty. In contracts and sales, one created by the apt s.nd expiicit statements of the seller or person to be bound. 3 It_riwle (Pa.) 36 23 Am. Diecv 85; White v.

V. Crookshaniis, 68 Mo. App. 316. In the law ‘nsurance, an agreement expressed in I policy, whereby the assured stipulates that certain facts reiating to the risk are or shall be true, or certain acts reiarin: to the same sub- ject have been or shall be done. 1 Phii. Ins. (4th Ed.) 1). 425; Petit v. German Ins. (‘o. (C. C.) 98 Fed. 802; 1Etna Ins. Co. v. Grubs, 6 a I a 82 (Gil. 32); Insurance Co. v. 1\loi-gain, 90 Va. 290. 18 S. E. 191.—Genern1 warranty. The name of 21 covenant, of warranty inserted in deeds, by which the grsntor binds bimsclf. bis heirs. etc., to "warrant and forever defend" m the grantee. his heirs, etc., the title thereby con- veyed, sguinst the lawful claims of ail persons whatsoever. Where the warranty is only against the claims of persons cla‘ ing "by. through, or under" the grantor or his heirs. it is called I "special wan-iint_v."—Implied warranty. A warranty raised by the law as an inference from the nets of the parties or the circumstances of the transaction. Thus, if the seller of a chsttcl have possession of it and seli it as his own, and not as agent for another, and for :1 fair price. ho is understood to wurravnt the title. 2 Kt. Comm. 478. A warranty implied from the general tenor of an instrument, or from particular words used in it, although no express warranty is mentioned. Thus. in every poiicy of insursnoe there is an implied warranty that the ship is sex- worthy when the policy attaches. 3 Kent Comm. 287; hii. Ins._ 8.—Liriea.l warranty. In old conveyancing, the kind of w_nrranty which existed when the heir derived title to the land warranted either from or through the ancestor who made the Wal'rsuty.—Personnl warranty. One avsilnbie 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. Fhur