4.2.3 Was there a significant lapse of time between the statement and the contract?

The courts generally consider that the closer in time that the statement was made to the conclusion of the contract, the more likely it is that it was a matter of importance to the claimant, and should therefore be treated as a contractual term. It is certainly true that if there is no significant gap, the statement may well be treated as being intended to be part of the contract, particularly if the agreement is not put into writing. It is by no means clear, however, that the mere existence of a delay should be regarded as in itself reducing the significance of the statement. Such delay may well have been caused by matters irrelevant to the statement, and the claimant may have felt that having settled the issue which the statement concerned, there was no need to re-state it at the time of the contract. Nevertheless, whatever the true significance of the delay, it is undoubtedly the case that as far as the courts are concerned it will weaken the claimant’s case.

An example of the application of this test is the case of Routledge v McKay. This concerned the sale of a motorbike. The defendant, who was selling the bike, had told the plaintiff that the date of the bike was 1942. In fact, it dated from 1930. A week elapsed between the defendant’s statement and the making of the contract of sale (which was put into writing). It was held by the Court of Appeal that the defendant’s statement was not a term of the contract. The decision may appear a little harsh, but it may be significant that application of both the other tests outlined above would have gone in favour of the defendant. Thus, the written agreement made no mention of the age of the bike, and neither party had any special skill or knowledge. Both were private individuals, and the defendant in making the statement had innocently relied on false information contained in the bike’s registration document.

As this last case shows, it must be remembered that none of the tests discussed here is automatically conclusive of the issue. All may need to be considered and, if they point in different directions, weighed against each other. The ultimate question is whether the statement, viewed objectively, was intended to form part of the contract. All the other tests are simply matters which may provide guidance to the court in determining this issue.

4.2.4 Pre-contractual statements under the Principles of European Contract Law

The suggested approach to the incorporation of pre-contractual statement under the Principles is set out in Art 6.101. This provides that the main question is whether the party to whom the statement was made reasonably understood it to give rise to contractual obligation, taking into account:

1. the apparent importance of the statement to (the party to whom it was made);

2. whether the party was making the statement in the course of a business; and

3. the relative expertise of the parties.

There is a clear overlap with the approach of the English courts here, though the number of matters to be taken into account is narrower. On the other hand, they specifically make the fact that a statement was made in the course of a business as something which will tend towards a statement being regarded as part of the contract.

Paragraphs 2 and 3 of the Article deal with the responsibility of a «professional supplier» for statements about the quality or use of goods and services in advertising and marketing information. Where the statement is made by the supplier directly, it will be treated as giving rise to a contractual obligation unless «the other party knew or could not have been unaware that the statement was incorrect». Where the statement is purported to be made on behalf of the supplier, «or by a person in earlier links of the business chain», it will again give rise to a contractual obligation, unless the supplier «did not know and had no reason to know of the information or undertaking».

This goes considerably further than English law, and brings advertising material much more clearly within the scope of contractual obligations.