Writing Contracts: Representations By Bob Miles At Isnare.com Ezine Articles

A good understanding of representations is important to drafting many kinds of contracts. If your representations are well written, they can prevent a dispute later. Even if they don’t, skillfully drafted representations can win a contract dispute for you if it ever comes up.

A representation is a statement intended to persuade someone to enter a contract. For example, “The all new Heatflux will reduce your heating bills by 20%”. If this representation turns out to be false, then the buyer might be able to have the contract declared void – treated as if it had never existed in the first place, allowing the buyer to return the Heatflux and get a full refund. Nevertheless, a misrepresentation will not void a contract unless it is “material” - the aggrieved party would probably not have entered the contract without the representation. This means that ambiguous statements like “This outfit is so sporty the women will be crawling all over you” are usually unenforceable even if you never get a date. Comparatively minor failures may not be enough to get the contract declared void either – if Heatflux reduced your heating bills by only 17% you may be entitled to a small amount of damages, but you might not be excused from paying your installments. If you are a buyer, get clear and complete representations from the seller – and if you are a seller, don’t make any false representations to the buyer.

Consumer protection laws will, in effect, write invisible representations into consumer contracts even if they are not written down. An electric razor that won’t shave, or a DVD player that won’t play DVDs may be returned for a full refund even if the contract did not say that the product would actually work.

In a commercial contract between two businesses where the purchase terms are negotiated rather than being offered on a “take it or leave it” basis (known as an “adhesion contract”), consumer protection laws will not apply. In this situation a contract maybe enforceable even if it states that the product is supplied “as is”.

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