Every day you buy or sell different goods. This is a contract with the other party. Herein, there are certain conditions and warranties, you need to be aware off. In general, a condition is a term which goes directly to the substance of the contract and is essential to its very nature that its non-performance may be considered by the other party as a substantial failure to perform the contract. Legally, a breach of a condition by one party entitles the other to repudiate the contract.
Whereas, a warranty is an agreement which is collateral to the main purpose of the contract and though it must be performed, it is not so vital that a failure to perform it goes to the substance of the contract. A breach of a warranty only gives rise to an action for damages. The party affected thereby cannot repudiate the contract and reject the goods. Like a condition, a warranty is a term of the contract and whether stipulation as of time e.g., of delivery is a condition or warranty depends on the terms of the contract, save that stipulations as to time of payment are never deemed conditions unless a different intention appears.
There are some issues, where conditions and warranties may be negatived or varied by express agreement of the parties, or their course of dealing or usage binding on them. However, such alternatives must not lead to fundamental breach of the contract, otherwise, may be refused by Courts. Also, an affirmation at the time of sale could be a warranty provided it appears on the evidence to be so intended. In general, the onus of proving breach of warranty is upon the buyer.
Whether a stipulation in a contract is a condition or a warranty depends in each case on the construction of the contract, and a stipulation may be a condition though called a warranty in the contract. Breach of condition may be treated as breach of warranty in some instances as, the buyer may elect to treat the breach of condition as a breach of warranty or may waive the condition which he may be able later to reintroduce.
The intention of the contracting parties is very essential. However, Courts may interfere in certain cases where a party intends to misrepresent or defraud the other. Always, but your conditions in clear constructive words.
Dr. AbdelGadir Warsama
LEGAL COUNSEL
Email: AWARSAMA@WARSAMALC.COM
