Lawyers and contract managers regularly draft warranties without really understanding them, particularly in my field, IT. This article aims to tell contract drafters what they need to know.
What is a warranty anyway?
A warranty states a fact or facts put forward by one contracting party, which the law treats as a core part of the bargain and enforces under special rules. A contract can expressly state a warranty – the focus of this article – but the law can also add a warranty, an implied warranty, even if it’s not stated.
Courts enforce warranties under their own set of rules, similar to other contract terms but not identical. In some ways, those rules give warranties extra punch. If the stated fact turns out wrong, the warrantor’s generally in breach, even if it wasn’t negligent or dishonest and, in many cases, even without evidence that the other party relied on the warranty. In other words, warranties are no fault, no reliance terms, at least in theory. And warranty enforcement differs in other ways.[1]
Many warranties state a fact partly outside the warrantor’s control. For example: “Provider warrants that the System will not transmit a computer virus or other harmful code.” The provider can try to keep harmful code out, but it can’t be sure. So is the warranty dishonest? No. Where the event lies partly outside the warrantor’s control, the clause doesn’t truly promise it won’t happen. Rather, the warranty shifts the legal risk of that event. So in the example above, the provider/warrantor accepts legal responsibility for a virus.
Warranty Principles
Warranty law is riddled with nuance, but the following three principles should simplify the contract drafter’s job.
1. Use a warranty only to state facts. A promise to act generally won’t qualify, even if you call it a “warranty” or use “warrants.
Your contract might call the following a warranty: “Provider warrants that, during the 180 days following delivery, it will maintain the Software so that it operates according to the Specifications.” But that’s a promise to act, so it’s fair odds a court wouldn’t enforce it as a warranty. (Technically, it’s a covenant.) And if it did, the court would probably treat the clause like a statement of fact – about the software’s performance, not the provider’s actions.
A true warranty should state facts.[2] It could state a future fact, so the following should qualify: “Provider warrants that the Software will operate according to its Specifications for 180 days following delivery.” And of course, it could state a past or present fact.
Getting it wrong doesn’t mean you’ve wasted ink. If you use warranty or warrants in a promise to act, a court might not enforce your promise as a warranty, under the no fault, no reliance rule and the others mentioned above. But the promise should still be enforceable as a garden-variety contract clause.
Does it matter, then, if you call a promise to act a warranty? Reasonable minds can differ, but I’d say yes. We don’t sign contracts for courts or lawsuits, at least not primarily. We sign contracts because good fences make good neighbors (as I point out in The Tech Contracts Handbook). So clarity matters regardless of what could happen in court. And using warranty language “wrong” could confuse future readers, breaking up those fences.
Also, misuse could increase time and expense of litigation, if you do end up in court.
2. Even stating a fact won’t guarantee that courts/laws consider your clause a warranty, and neither will use of warranty language. But you might pay a low price for getting it wrong.
The following generally don’t qualify as warranties: estimates, predictions, opinions, sales puffery, goals, statements of intent, and vague claims. And that’s not even the full list of non-qualifying statements of fact.
On the flip-side, a contractual statement of fact could qualify as a warranty even without warranty or warrants, if it fits the applicable law’s (complex) definition.
To get it right consistently, then, you should study your jurisdiction’s warranty law in detail.
Unfortunately, you’ll find it harder to learn the necessary distinctions among statements of fact than the fact vs. act distinction discussed above. But once again, you pay a low price for getting it wrong – if you’re not invested in how a court would enforce your clause: if you’re OK with either warranty or non-warranty rules. So a lot of contract drafters wing it, including lawyers. (Many don’t realize they’re winging it, since they don’t know the issues.)
3. You’ll see “represents and warrants” in many or most warranties, but you should use “warrants” alone, particularly if you’re the warrantor.
Represents and warrants have different meanings. A warranty can state a past, present, or future fact, as we’ve seen, but you can’t represent (or misrepresent) something in the future, because you don’t know what will happen.[3] Also, while breach of either could lead to a contract claim, misrepresentation could also lead to a tort claim. And enforcement could differ in other ways.
Represents and warrants entered our vocabulary, most likely, because customers wanted both sets of remedies. But that won’t necessarily work because courts decide what counts as a representation, just as they decide on warranties. More important for our purposes, few contract drafters even know why they’re using both verbs, and in typical warranties, few parties expect the added punch of a representation, even when they use the word. So warrants fits typical expectations better than represents and warrants – certainly in IT and probably in most industries. And of course, the warrantor gains nothing from piling a representation on top of a warranty.
If you’re the receiving party, on the other hand, represents and warrants probably won’t do you any harm, and the added word could give you broader rights. But it’s probably not the hill to die on.
Represents does have a role in contracts, for any party. But you should use it for statements about facts the promisor actually knows – e.g., “Provider represents that it is not aware of a third party IP infringement claim related to the System.” And ideally, you should learn its legal impact.
By the way, you might not need warrants either – or a section called Warranties. The following could qualify as a warranty: “Provider states that the Software will operate according to the Specifications during the 180 days following delivery.”[4] But I worry that you could pay a price for giving up warrants because the word signals your intent to create a warranty, which could help in some cases. More importantly, contract drafters are used to warrants – again, particularly in my field: IT. And familiarity simplifies negotiations and helps the contract do its main job: guiding the relationship.
THIS ARTICLE IS NOT LEGAL ADVICE. IT IS GENERAL IN NATURE AND MAY NOT BE SUFFICIENT FOR A SPECIFIC CONTRACTUAL, TECHNOLOGICAL, OR LEGAL PROBLEM OR DISPUTE, AND IT IS NOT PROVIDED WITH ANY GUARANTEE, WARRANTY, OR REPRESENTATION. LEGAL SITUATIONS VARY, SO BEFORE ACTING ON ANY SUGGESTION IN THIS ARTICLE, YOU SHOULD CONSULT A QUALIFIED ATTORNEY REGARDING YOUR SPECIFIC MATTER OR NEED.
© 2026 David W. Tollen
[1] In U.S. states, sales of goods and sales of other products and services have slightly different enforcement rules, since the Uniform Commercial Code (UCC) applies to the former but not the latter. (All U.S. states have adopted the UCC in one form or another.)
[2] I use statement of fact broadly to include descriptions of products/services, promises about their nature, presentation of samples – all past, present, or future.
[3] You can represent or misrepresent your intentions for the future, but that’s really a present fact.
[4] This suggestion – the verb states – comes from Ken Adams, author of A Manual of Style for Contract Drafting, from ABA Publishing, which also publishes my book. (I offer a different recommendation but consider his work extremely well-researched and valuable.)