Decide the liability you intend
Start by deciding what liability you want the assurances to carry: warranties only - contract claims, capped and time-limited - or dual liability in contract and misrepresentation. The cases punish ambiguity, so the contract should make the choice unmistakable rather than leaving a court to infer it from "represents and warrants".
Everything else - the schedule, the limitations, the entire-agreement clause - should then line up behind that choice.
Warranties only (seller-friendly)
For warranties only, label them warranties, set them out in a warranty schedule, and state expressly that they are contractual warranties and not representations, that they give rise to no claim in misrepresentation, and that they are the seller's sole assurances. You can still acknowledge that the buyer relies on the warranties - that supports a warranty claim without creating representation liability, the distinction the court drew in Sycamore Bidco.
Pair this with an entire-agreement and non-reliance clause so pre-contractual statements do not resurface as misrepresentation claims.
Dual liability (buyer-friendly)
For dual liability, state that the seller represents and warrants, that each statement is both a contractual warranty and a pre-contractual representation, and that the buyer is entering into the agreement in express reliance on the representations and would not do so but for them. The reliance and inducement language is what creates the representation; without it, Sycamore Bidco shows you may be left with warranties only.
Then make sure the limitation provisions cover both warranty and misrepresentation claims, carving out fraudulent misrepresentation, or the protections may not reach the misrepresentation route.
The entire-agreement and non-reliance clause
Whichever liability you choose, the entire-agreement clause controls pre-contractual statements. Include an express, mutual non-reliance acknowledgement; confirm each party did its own due diligence and was advised; state the exclusive remedy is under the contract save for fraud; and open the exclusion with "save in respect of fraud". Where UCTA may apply, acknowledge the clause is a reasonable allocation and why.
This is the clause that, properly drafted, confines a seller to warranties - and the one a buyer must resist or carve back if it wants misrepresentation claims preserved.
Pre-signature checklist
Before signing, work through: do we have warranties, representations, or both, and does the structure match the intent? Do the limitations cover both warranty and misrepresentation claims, with fraud carved out? Does UCTA actually apply, or could section 27 switch off UCTA's own controls? If UCTA applies, will the exclusions and non-reliance clause pass reasonableness? Are the warranties properly qualified by a specific disclosure letter? And how will damages be measured - remembering MDW Holdings fixes value at completion with no hindsight?
The detailed mechanics of caps, exclusions, the fraud distinction, and UCTA reasonableness are in the limitation-of-liability guides; this guide is about getting the warranty and representation architecture right so those mechanics attach to the liability you actually intended.
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Practical checklist
- Decide warranties only or dual liability and draft the structure to match - do not rely on "represents and warrants".
- Warranties only: label as warranties, state they are not representations and are the sole assurances (Sycamore Bidco [2012] EWHC 3443 (Ch)).
- Dual liability: state each statement is both a warranty and a representation and that the buyer relied on it; cover both in the limitations.
- Use an express, mutual non-reliance clause, carve out fraud, and address UCTA reasonableness where it may apply.
- Check whether UCTA applies at all (section 27) before relying on the reasonableness test.
- Qualify warranties with a specific disclosure letter, and plan damages around the completion-date, no-hindsight measure (MDW Holdings [2022] EWCA Civ 883).
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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