20-1 TERMINOLOGY: THE NATURE OF WARRANTIES
A warranty, said Lord Mansfield, is “a condition on which the contract is founded”. 1 The role of the warranty is “to establish the existence of circumstances without which the insurer does not undertake to be bound”. 2 More specifically, a policy term of this kind “warrants, owing to force of express words or through the operation of law, either that certain statements of fact are accurate, or that certain statements of fact are and will remain accurate, or that [the policyholder] will undertake the due performance of an obligation specified therein”. 3 The latter are usually called promissory or continuing warranties, 4 whereas warranties that certain statements of fact are accurate are sometimes called affirmative warranties. For lawyers today, however, perhaps the most useful introductory definition of a warranty is that of Lord Goff: a warranty is any term of an insurance contract which, properly construed, is a condition precedent to the inception or continuation of cover. 5 In other kinds of contract “warranties” are usually something different.
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