1 Four Guidelines to distinguish terms and representations
1.1 Time lapse
The court will look at the length of time between the statement was made until the party entered the contract. The longer the duration, the more likely the statement is a representations.
1.1.1 Van Den Esschert v Chappel ( White Ants)
In Van Den Esschert v Chappel, the court held that the statement made by the def was a term because the parties entered into the contract immediately after the def assured the plf that the house was not infested by termites.
1.2 Importance of statement to party
If the innocent party place a greater importance upon a statement, the statement will be regarded as a term.
1.2.1 Bannerman v White (Sulphur in Hops)
In Bannerman v White, the court held that the statement made by the def was a term as the plf placed a great importance to the use of sulphur in the hops. The plf added that if there was a use of sulphur in the hops, the plf would not even bother to buy it.
1.3 Special skills and knowledge of the maker of statement
If the maker of the statement has special skills and knowledge compared to the other party, the court will classify the statement made as a term rather than representations.
1.3.1 Tan Chong & Sons Motor Company Sdn Bhd v Alan McKnight (Failure to comply Australian Design Regulations)
In Tan Chong & Sons Motor Company Sdn Bhd v Alan McKnight, the court held that the statement made by the appellants' salesman regarding the car to comply with the Australian Design Regulations was a term because they have the special skills and knowledge on cars compared to the respondent.
1.4 Statement reduced to writing
If the contract has been reduced to a document, and the statement in question is not included, it is more likely that the statement is a representation.
1.4.1 Routledge v Mckay (Model year of bike)
In Routledge v Mckay, the court held that the statement made by the def was a representations because the statement was not reduced to writing. It shows that the model of the motorcycle does not place a great importance to the contract.