374
THE GREEN BAG
Manj- courts in this country have lost sight of the idea of warranty forming the basis of a tort, " and most of the confusion in the law of express warranty is due to a failure to observe that a representation or affirmation by the seller which cannot without straining the facts be properly regarded as contractual (though the remedy of assumpsit and its equivalents may for convenience be permitted) is, and should be, a ground of liability for the seller." An express promise or agreement to warrant, made at the time of the sale, clearly renders the seller liable. But there is much conflict and inexactness in defining what statements not made in the form of an express warranty or promise will render the seller liable. Penn sylvania seems to have confined the liability to cases of express promise. No other American jurisdiction seems to go thus far, but many, especially the older ones, require an " intention to warrant." This requirement generally means, however, not an intent to contract or agree to be bound, but an intent to make a statement as matter of fact rather than as matter of opinion. The American cases are in great conflict, but an examination discloses a growing tendency to regard a positive state ment by the seller by way of description of the goods or in regard to them as binding; and the meaning of the intent, if inserted in the defini tion of warranty at all, seems to be apparent intent to assert a fact rather than an intent to agree to be bound. A troublesome distinction is sometimes made between " mere description " and " statements constituting a warranty." " The law, however, is now convincingly settled that descriptive statements do constitute a warranty, whether the seller makes them or whether the buyer in ordering goods makes them and the seller furnishes goods in response to such an order." The tortious character of warranty is of vital importance in considering how far state ments made previously to the bargain may constitute a warranty. Such statements affect a buyer's mind and are frequently the induce ment to an ultimate sale. If such statements were a natural inducement to the bargain and the sellcrought to haveso understood, he should be liable, though they were long prior to the
bargain and not naturally to be regarded as forming part of the contract itself. The relation of warranty to tort is of impor tance when considering the parole evidence rule, the basis of which is that it must be assumed that when parties were contracting in regard to a certain matter and reduced their agreement to writing, the writing expressed their whole agreement. This reason is obvi ously inapplicable to a situation where an obligation is imposed by law irrespective of any intention to contract. Therefore if a buyer is induced by positive statements of fact to enter into a written contract for the purchase of goods, there seems no reason why these statements should not be admitted in evidence. The distinction between a state ment of fact and one of opinion continually causes difficulty. Professor Williston states a number of cases on each side as the best way of indicating where the line is to be drawn. The article concludes with a discussion of the rules as to the requirement of reliance by the buyer upon the seller's statement. SHERMAN ACT (Defects and Remedies). "The Sherman Anti-Monopoly Act and Pro posed Amendments," by Everett P. Wheeler, Columbia Law Review (V. viii, p. 452). The Sherman Act is considered by Mr. Wheeler "one of a series of enactments . . . popular with the noisy part of the American people. An abuse is discovered. Immediately a cry is raised against the use of the thing which has been abused, and an application is made to the legislature to prohibit its use altogether.' The abuses, he admits, were many. Capital showed a tendency to combine. Many com binations were of public benefit. But other combinations had attempted to drive com petitors out of business, not by producing a better article or selling continuously at a lower price, but by methods which whether legal or not were morally indefensible. Un fortunately the government did not confine its proceedings to cases of this description; one of its first actions was to restrain the enforce ment of an agreement made by railroads west of the Mississippi to enable them to carry out the provisions of the Interstate Commerce Act in regard to the uniformity of rates. The Supreme Court held it would enforce the provisions of the act without limitation by
