A warranty is denned as the collateral agreement, that is annexed to the agreement transferring the property right in the thing sold, by which warranty, the seller vouches for, either expressly or impliedly, the title, the condition and the quality of the subject matter of the sale. An express warranty is an express or positive declaration or assertion made by the seller, relating to some fact respecting the thing sold, which statement may be taken by the buyer as true, and one on which there is an obligation on which he may hold the vendor. A representation is the statement that precedes the agreement of sale, on which the contract of sale is founded, and if the representation is relied on, it is the inducement of the contract. A false representation may, if it amounts to fraud, give the injured party the right to rescind the contract itself, or hold the other party in damages for its breach.

A warranty is likewise to be distinguished from condition. If there is a condition which forms the basis of the contract, and the condition be broken, the contract is at an end. A breach of warranty does not bring the contract to an end; it merely gives a right in damages for the breach.

A warranty may arise without the vendor of goods using the word warranty, no particular words are necessary to bind the vendor, but any language used from which a warranty might be inferred is sufficient.1

1 Stone vs. Denny, 4 Metc. (Mass.), 151.

The warranty need not be in writing. The decision as to whether a warranty exists or not may be one of law or fact. Where it is a question of fact, as to whether or not the representation is made, then the solution of the question in a law suit, is one for the jury,2 under instructions from the court, but where the facts are not in dispute or the statement is a written one, the question is one for the court.3