DISTINCTIONS BETWEEN TERMS AND REPRESENTATIONS

It should be noted that the Contracts Act 1950 does not contain any provisions specifically with the contents of the contract.The Act is also silent as to whether certain terms mey be implied.

Pre-Contractual Statements

Statements made prior to a contract, during negotiations of the agreement,falls within 2 categories

(a) statements made to induce a party to enter into a contract
(b) statements made which form part of the contract

A party who has been induced to enter into a contract by the statements made by the other may be entitled to relief for misrepresentation. But a statement that has contractual force becomes a term of the contract, a breach of which gives rise to a remedy in contract.

In Baker v Asia Motor Co. Ltd [1962] MLJ 425,HC(Singapore) The High Court of Singapore had to determine whether the statement made by the seller of a car that the second hand car was a 1958 model, when in fact it was a 1953 model, was a term of the contract, the breach of which entitled the buyer to damages. Buttrose J, in delivering the judgment observes as follows:

"In this case,there was an agreement for the supply of a 1958 model Humber Hawk and the car supplied was of a 1953 model.There has been, in my view, a breach of an express term of the contract"

In Dick Bentley's Production Ltd v Harold Smith(Motors) Ltd [1965] 1 WLR 623, CA- it was held that the defendant's statement that the car had done only 20,000 when in fact it had done 100,000 was held to be a term of the contract.

However in the case of Oscar Chess Ltd v Willaims[1957]1 WLR 370 it was held that a statement that a car was a 1948 model when it fact it was a 1939 model was not a term of the contract. This was due to the fact that there was no negligence on the part of the Defendant.

The facts of Thake v Maurice [1984] 2 All ER 513;[1986] 1 All ER 497,CA.

The Plaintiff consulted the Defendant, a surgeon whether he could be sterilised by vasectomy.( This surgery is meant for the men to prevent from causing pregnancy in a woman). The surgeon discussed the nature of the operation and made it clear that the vasectomy was final and that the Plaintiff would be permanently sterile.

The Plaintiff was asked to sign certain forms consenting to the operation. The Defendant carried out the operation. However, contrary to the doctor's assurances, the Plaintiff's wife got pregnant again. The Plaintiff sued the Defendant stating that the Plaintiff was induced into the contract by a false warranty. The Court held that the Plaintiff was not entitled to expect the Defendant to gurantee a 100% success of the operation. Neill LJ observed,

" Medicine, though a highly skilled profession,is not generally regarded as being, an exact science... Accordingly,though I am satisfied that a reasonable person would have left the consulting room thinking that the Plaintiff would be sterilised by the vasectomy operation, such a person would not have left thinking that the Defendant had given a guarantee that the Plaintiff would be absolutely sterile.