When this issue usually comes up
This question often arises in technology procurement and other high-value commercial deals.
During due diligence and negotiations, a supplier may make statements about a product's capabilities, whether it meets your requirements, whether it is fit for purpose, and whether it conforms to agreed specifications. If you rely on those statements to decide whether to sign and later find they were incorrect, your available remedies will depend largely on whether the statements were incorporated into the contract as binding terms or remain only pre-contract statements.
The legal distinction
The difference matters because warranties and representations can give rise to different causes of action and remedies.
Representation
A representation is a statement of fact made by one party to another, which may be relied on when deciding whether to enter the contract. Representations are commonly made during negotiations and may not be included as terms of the contract.
If a representation is false and it was not incorporated into the contract, the aggrieved party generally cannot sue for breach of contract based on that statement. Other remedies may still be available, depending on the circumstances, including:
Rescission, where the contract may be set aside and orders made to restore the parties to their pre-contract positions to the extent possible
Damages in negligence, where the statement was made negligently or with a degree of recklessness as to whether it was true
Australian Consumer Law (ACL) remedies, including for misleading or deceptive conduct
Warranty
A warranty is a contractual term. It operates as a promise or undertaking. If a warranty is breached, the usual contractual remedies are available, including damages intended to put the aggrieved party in the position they would have been in had the contract been properly performed.
A breach of warranty may also support termination, but that depends on the contract and the seriousness of the breach:
At common law, a breach of warranty (as distinct from breach of an essential term or “condition”) does not usually give rise to a right to terminate.
However, termination may still arise at common law if the breach is sufficiently serious so as to deprive the aggrieved party of substantially the whole benefit of the contract.
Many contracts also include a termination regime that defines termination triggers more clearly than relying on common law concepts.
Why classification affects risk and decision making
Whether a statement is treated as a pre-contract representation or a contractual warranty can materially affect:
What claims are available (breach of contract vs misrepresentation or statutory claims)
What remedies are available (contractual damages, rescission, statutory relief)
How liability clauses apply, including caps, exclusions, and limitations
Whether non-reliance or entire agreement provisions reduce available claims by asserting that pre-contract statements were not relied on and do not form part of the bargain
Practical implications for your contract
If you need to rely on statements, make them contractual
If a statement is important to your decision to sign, the most effective approach is usually to convert it into a contractual commitment. Common ways to do this include:
Drafting the statement into the contract as an express term
Incorporating pre-contract documents by reference, such as a tender response, product specifications, or written assurances exchanged during negotiations
When doing this, focus on three points:
How the statement is framed
If a statement in the contract is described as both a warranty and a representation, this can help preserve both contractual remedies for breach and potential remedies for misrepresentation if the statement proves false. This is often strengthened by an express clause stating that the relevant party relied on the representation in entering into the contract.
Termination consequences
To reduce uncertainty, the contract should state whether breach of the relevant warranty gives rise to termination rights and, if so, under what conditions. Relying solely on common-law material breach concepts can create avoidable ambiguity.
Interaction with liability provisions
If the contract includes liability caps, exclusions, or other limitations, confirm how they apply to warranty breaches, and whether any key warranties should be carved out.
If you want to limit exposure to negotiation statements, use clear non-reliance drafting
If the parties intend the contract to be the full record of the deal and do not want negotiation statements to carry legal consequences, the contract should clearly state that:
Pre-contract representations do not form part of the contract
The parties did not rely on any pre-contract statements when deciding to enter the contract
These provisions are consistent with the entire agreement clause
There are limits to how far liability for misrepresentation can be excluded, particularly for statutory claims. However, clear disclaimers can help establish that, as a matter of fact, a party did not rely on pre-contract statements, which can reduce or negate liability that might otherwise arise.
Bottom line
In commercial practice, the key question is not only whether a statement was made, but whether it was made contractually enforceable, and how the contract allocates risk through liability limits and non-reliance provisions. If a statement is driving your decision to sign, treat it as a contract term and make the consequences of breach explicit.
