What is the test for a warranty in a commercial contract?
Ontario, Canada
The following excerpt is from French Family Funeral Home Limited v. William Player, Joanne Harpell and Bruce Holtom, and 1564714 Ontario Ltd. and 1872864 Ontario Inc., 2015 ONSC 182 (CanLII):
In Davis v. Kelly 2001 P.E.S.C.T.D. 98, DesRoches C.J.T.D. stated at paragraph 35: A warranty is the assurance by one party to a contract of the existence of a fact upon which the other party to the contract may rely. It is an assurance given by the promissor to the promissee in order to relieve the promissee of any duty to ascertain the fact for himself or herself. It is a term of the contract, but is collateral to the main purpose of the contract; that is to say it is not so vital as to negate the agreement if the warranty is not true. However, if the warranty is untrue, it can give rise to an action for damages.
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