Can the purchaser claim an unlawful act for misrepresentation and a contractual right to a breach of the warranty? Traditionally, guarantees have been formulated in such a way as to be declared as guarantees and guarantees to enable the buyer to do so. However, the Senate Electrical Wholesalers Ltd -v- STC Submarine Systems Ltd.9 found that a right to an unlawful act for a guarantee declared as a representative was “almost certain, if not certain, doomed to failure”. Therefore, while it is doubtful that the attempt to disguise a warranty still works, there have recently been arguments in which arguments have been successful for both insurance and guarantees in the same agreement.10 After the sellers found a breach of the warranty, a problem arose – relevant to the amount of damage to be recovered by the buyer – if the sellers were entitled , to invoke a provision in the share purchase agreement that excluded the guarantee contrary to liability “to the extent that… the case to which the claim relates… is a reference to lost goodwill.” The value was not defined in the agreement. 1. See below, “Do the reduction and removal rules apply to claims?” 2. Hong Kong Fir Shipping Co Ltd -v- Kawasaki Kisen Kaisha Ltd  2 QB 26. For more details on the classification of contract terms, see Ashurst Quickguides: Interpretation of Contracts under English Law and Endminating Contracts. In particular, the position is reversed for some insurance policies.
3. See Lord Hoffman in South Australia Asset Management Corporation -v- York Montague  AC 191 at 216: “In the event of a guarantee, the applicant`s position following the closing of the transaction is compared to what it would have been if the information had been correct.” 4. Eastgate Group Ltd -v- Lindsey Morden Group Inc  1 WLR 642. 5. See Lion Nathan Ltd-v- CC Bottlers  1 WLR 1438. 6. 156 ER 145; (1854) 9 Ex. 341 and see Chitty on Contracts (29th edition 2004) at point 26-044. 7. It should be remembered that losses such as loss of earnings or commercial activity are generally direct and not indirect, so that losses and responsibilities must be excluded or limited in a congruous manner.
Total Transport Corp -v- Arcadia Petroleum Ltd (The Eurus)  1 Lloyd`s Rep. 351. 9. Transcript unrevised, CA, May 26, 1994. 10. MAN Nutzfahrzeuge AG -v- Freightliner Ltd e.a.  EWHC 2347 (Comm).