WARRANTY,
Legal Term: WARRANTY,
Definition: has always been held to sound in damages which after judgment may be recovered out of the personal or real estate, as in other cases. Vide 4 Kent, Com. 457, 3 Rawles R. 67, n., 2 Wheat-. R. 45, 9 Serg. &, Rawle, 268, 11 Serg. &, Rawle, 109, 4 Dall. Rep. 442, 2 Saund. 38, n. 5.
7. - 2. Warranties in relation, to the sale of personal chattels are of two kinds, express or implied.
8. An express warranty is one by which the warrantor covenants or undertakes to insure that the thing which is the subject of the. contract, is or is not as there mentioned, as, that a horse is sound, that he is not five years old.
9. An implied warranty is one which, not being expressly made, the law implies by the fact of the sale, for example, the seller is, understood to warrant the title of goods be sells, when they are in his possession at the time of the sale, Ld. Raym. 593, 1 Salk.. 210, but if they are not then in his possession, the rule of caveat emptor applies, and the buyer purchases at his risk. Cro. Jac. 197.
10. In general there is no implied warranty of the quality of the goods sold. 2 Kent, Com. 374, Co. Litt. 102, a, 2 Black Comm. 452, Bac. Abr. Action on the case E, 2 Com. Contr. 263, Dougl. 20, 2 East, 31 4, Id. 448, n., Ross on Vend. c. 6, 1 Johns. R. 274, 4 Conn. R. 428, 1 Dall. Rep. 91, 10 Mass. R. 197, 20 Johns. Rep., 196, 3 Yeates, R. 262, 1 Pet. Rep. 317, 12 Serg. &, Rawle, 181, 1 Hard. Kent. Rep. 531, 1 Murphy, Rep. 138, 2 Id. 245, 4 Haywoods Term. R. 227, 2 Caines Rep. 48. The rule of the civil law was, that a fair price implied a warranty of title, Dig. 21, 2, 1, this rule, has been adopted in Louisiana, Code, art. .247 7, and in South Carolina. 1 Bay, R. 324, 2 Bay, R. 380 1 Const. R. 182, 2 Const. R. 353. Vide Harr. Dig. Sale, II. 8, 12 East, R. 452.
11. - 3. In the contract of insurance, there are certain warranties which are inducements to the insurer to enter into it. A warranty of this kind is a stipulation or agreement on the part of the insured, in the nature of a condition precedent. It may be affirmative, as where the insured undertakes for the truth of some positive allegation: as, that the thing insured is neutral property: or, it may be promissory, as, that the ship shall sail on or before a given day. 6 N. S. 53.
12. Warranties are also express or implied. An express warranty is a particular stipulation introduced into the written contract, by the agreement of the parties, an implied warranty is an agreement which necessarily results from the nature of the contract: as, that the ship shall be seaworthy when she sails on the voyage insured.
13. The warranty being in the nature of a condition precedent, it is to be performed by the insured, before he can demand the performance of the contract on the part of the insurer. Marsh. Inst. B. 1, c. 9. See, generally, Bouv. Inst. Index, h. t.
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