linguistic:voice_change, stylistic:tone
Representations versus warranties

Statements of fact in a contract or in obtaining the contract are considered to be either warranties or representations. Traditionally, warranties are factual promises which are enforced through a contract legal action, regardless of materiality, intent, or reliance. Representations are traditionally *pre*contractual statements which allow for a tort-based action if the misrepresentation is innocent, negligent or fraudulent. In U.S. law, the distinction between the two is somewhat unclear; warranties are viewed as primarily contract-based legal action while negligent or fraudulent misrepresentations are tort-based, but there is a confusing mix of case law in the United States. In modern English law, sellers often avoid using the term 'represents' in order to avoid claims under the Misrepresentation Act 1967 (although English law will look to the substance rather than the form of the representation to decide what it is), while in America 'warrants and represents' is relatively common. Some modern commentators suggest avoiding the words and substituting 'state' or 'agree', and some model forms do not use the words; however, others disagree.