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The Difference Between a Warranty and a Representation

In the contract between Intended Parents and Donor/Surrogate, specific promises are made. Some of those promises have defined legal meanings. For example, you have heard about a warranty in regular life- when you buy a new computer or vacuum, for example. When you read the word warranty in the contract with Parents/Donor/Surrogate, I am sure your first thought was that this is not like a car or toaster, come on, Christina! Keep reading, I promise to show you how they are similar.

The Legal Definition of Warranty: A warranty, as pertaining to contracts, is defined as an express or implied promise that something in furtherance of the contract is guaranteed by one of the contracting parties, especially a seller’s promise that the thing being sold is as represented or promised.

The Legal Definition of Representation: A representation is a presentation of fact, either by words or by conduct, made to induce someone to act, especially to enter into a contract.

What is the difference between a Warranty and a Representation?

A warranty differs from a representation in four ways.

  1. a warranty is an essential part of a contract, while a representation is usually only a collateral inducement.

  2. a warranty is always written on the face of the contract, while a representation may be written or oral.

  3. a warranty is conclusively presumed to be material, while the burden is on the party claiming breach to show that a representation is material.

  4. a warranty must be strictly complied with, while substantial truth is the only requirement for a representation.

So in your contract, when you make or receive a warranty, you know that the promise is true and you can rely upon the other person following through on the promise. So if you warrant that you have told the truth on your medical history, all parties will rely on your medical history being accurate. If you warrant that you have no intention of claiming parentage of the baby you are carrying as a surrogate all parties will rely on your statement and can use that statement as proof that you never intended to keep the baby.

So, while a warranty and a representation may seem similar (and both do involve promises made by parties) it is important to remember that a warranty is much more substantial and binding, which is why the parties to a contract always warrant the important information explicitly.

Black’s Law Dictionary 1303-1304, 1581 (7th ed. 1999).

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