Three kinds of contract term that fail in three different ways.
Esshaki Legal Media TeamCurrent as of November 2022
Distinguishing these categories determines what happens when something goes
wrong.
Representations are statements of fact, made as of a stated time. A false
representation supports a claim for breach and, where the elements are met, for
misrepresentation. In transactions they are the diligence mechanism: the seller
states facts, the buyer relies, and the indemnity allocates the risk of error.
Warranties are promises that a statement is true, with breach giving a
damages claim without the need to prove reliance in most formulations.
Covenants are promises to do or refrain from doing something. Breach gives a
claim for damages and, if material, a right to terminate.
Conditions are events that must occur before an obligation arises. Failure of
a condition does not by itself create a claim; it means the obligation never
became due. Conditions are how closing works and how insurance coverage is
structured.
Drafting consequences. Words like if, unless, provided that and subject to
create conditions; shall and agrees to create covenants. Courts disfavour
forfeiture and will construe an ambiguous term as a covenant rather than a
condition where the result would otherwise be disproportionate.
Practical significance. Whether a party may walk away, or must perform and
sue, turns entirely on this classification.