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Updated: June 21, 2025
Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights. Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles.
Of the former, warranty of title was rather regarded as an obligation raised by the law out of the relation of buyer and seller than as a contract. Other express warranties were matters within the knowledge of the transaction witnesses, and were sworn to by them in Saxon times. /1/
Item, that no inferior minister shall take upon him to make any bargain or sale of any wares, merchandises, or goods, but by the commission and warranties of the said agents under their hands; and he not to transgress his commission by any way, pretence, or colour.
And on principle it is only necessary between them in those cases such as warranties, and probably covenants for title where, the covenants being regarded wholly from the side of contract, the benefit goes by way of succession, and not with the land.
It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee. The technical expression for the rule was that they were annexed to the estate in privity. Nothing was easier than to overlook the technical use of the word "estate," and to say that such covenants went with the land.
The witness procedure was no doubt broad enough for all the contracts which were made in early times. Besides those of sale, loan, and the like, which have been mentioned, I find but two contractual obligations. These were the warranties accompanying a sale and suretyship which was referred to at the beginning of the Lecture.
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