Reviewing a warranty clause

A warranty is a contractual promise that a statement is true, and a breach of it is a breach of contract for which damages are payable whether or not the party giving it knew. A warranty clause converts statements about the goods, the services or the business into promises the other party can sue on. The clause also replaces or excludes the terms the law would otherwise imply. I review the clause from whichever side instructs me and return it marked up with a written explanation of what each warranty commits the party to, what the qualifiers do, and the changes the other side will accept, for a fixed fee of £495 in three working days.

Who this is for

Suppliers of goods, software and services in England and Wales asked to give warranties, and customers, licensees and buyers wanting warranties they can rely on, in a supply, licence, services, consultancy, development or outsourcing contract. Both parties are businesses; warranties given to consumers cannot cut down the rights in the Consumer Rights Act 2015.

What to look for in a warranty clause

Warranty, representation and the difference it makes

A warranty is a term of the contract; a representation is a statement that induced the contract. A breach of warranty gives damages measured to put the claimant in the position it would have been in had the warranty been true, and a misrepresentation gives damages under section 2 of the Misrepresentation Act 1967 measured to put the claimant in the position it would have been in had the contract not been made, and in some cases rescission. Customers' clauses say that the warranties are given 'as representations and warranties' to keep both routes open. The review explains what each route adds and, for a supplier, confines the statements to warranties.

The statutory terms the clause replaces

Goods carry implied terms of description, satisfactory quality and fitness for purpose under sections 13 and 14 of the Sale of Goods Act 1979, and services an implied term of reasonable care and skill under section 13 of the Supply of Goods and Services Act 1982. A warranty clause commonly excludes those terms and substitutes its own warranty for a period, which against a business is valid only if reasonable under section 6 of the Unfair Contract Terms Act 1977 for goods and section 3 for standard terms. The review checks what the clause takes away and what it gives back, and whether the substitute warranty is worth having.

Knowledge, materiality and the qualifiers that empty a warranty

Suppliers qualify warranties with 'so far as the supplier is aware', 'in all material respects' and 'except as disclosed', and each qualifier moves risk back to the customer. The review checks whose knowledge counts, whether reasonable enquiry is required, what 'material' means, and whether the disclosure exception refers to a disclosure letter that exists. For a supplier, it adds the qualifiers that reflect what the supplier can know; for a customer, it removes them from the warranties that matter, ownership, non-infringement and compliance with law.

Warranty periods, remedies and the sole remedy

A warranty of performance for a period, with repair, replacement or re-performance as the sole remedy, replaces the customer's right to damages and to terminate for the period, and the review checks the period against the product's life, the trigger for the remedy, the time the supplier has to provide it, and what happens if the remedy fails. It asks for a refund where repair fails, and checks that the sole remedy does not exclude termination for a breach that goes to the root of the contract.

Entire agreement, non-reliance and the statements outside the contract

An entire agreement clause confines the contract to the document; a non-reliance clause says the customer has not relied on anything outside it. Together they remove claims for pre-contract statements about performance, capacity and results, and under section 3 of the Misrepresentation Act 1967 a clause that excludes liability for misrepresentation is effective only if reasonable, and no clause excludes fraud. The review checks what the customer was told before signing and asks for the statements that mattered to be written in as warranties, or for the non-reliance clause to exclude them.

Drafting for the side you are on

For a supplier, the review drafts warranties it can stand behind: description, title, compliance with the specification, reasonable care and skill, and non-infringement so far as aware, each for a defined period with a defined remedy and a cap that applies to warranty claims. For a customer, it drafts warranties that match the promises made in the sales process, unqualified for ownership and compliance with law, with a warranty period that runs from acceptance and a claim period long enough to find the defect within the six years section 5 of the Limitation Act 1980 allows. The Late Payment of Commercial Debts (Interest) Act 1998 applies to sums due under a warranty claim that has become a debt.

What it costs

Standard review, £495. Marked-up document and a written explanation of the changes. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

The supplier warrants the software will perform 'substantially in accordance with the documentation'. What does that give us?

A promise measured against a document the supplier wrote, with the remedy the clause provides, usually re-performance for a period. The review asks for the specification you were sold to be the measure, for a refund where re-performance fails, and for the warranty period to run from acceptance.

We are asked to warrant that our work does not infringe any third party's rights. Can we?

Only so far as you can know, and the review qualifies it: non-infringement so far as you are aware after reasonable enquiry, excluding materials the customer supplied and combinations the customer makes, with a cap that applies to the claim.

What is the difference between a warranty and an indemnity?

A warranty is a promise that a statement is true, giving a damages claim if it is not; an indemnity is a promise to pay for a defined loss on a pound-for-pound basis without proof of breach. The review explains which the clause contains and what each costs the party giving it.

Related guidance and services

• Contract review, £495, the service this page describes
• Terms and conditions drafting, £995
• Reviewing an indemnity clause
• Reviewing a limitation of liability clause

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.