Quote:
Originally Posted by advocate2
Those covenants can be implied or express.
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A bit of poking around the web reveals the following.
Indemnities are the "if x happens, we agree to pay you (indemnify you) $" whereas warranties are the "we guarantee (warrant) that the situation will always be this, otherwise we'll give you $". With indemnities you don't have to prove loss, just that the action event occurred. With warranties you have to prove a financial loss as a result of relying upon the statement.
But you specifically mentioned indemnities...
As you rightly point out there are two types of indemnities, implied and express. But, as mentioned above, this all assumes that your contract with FW specifically states that if they change the terms of the contract, you're entitled to money back...I can't find anything on the website along those terms but perhaps you have something squirreled away in your inbox from FW?
Implied covenants: Did FW say or do anything to give you the impression that buying membership entitled you to guaranteed discount on every book they sold (or at least all or a significant number of the ones you want)? And did FW agree to reimburse you if it didn't happen (then you wouldn't have to prove any financial loss like you would for a warranty). Do you have any evidence to back up this belief? That'd be an implied covenant I think...
Express: Did you email FW and agree that, before you bought your membership, they would guarantee all or a significant number of the books you wanted would be discounted AND that you make it clear that this was vital to your membership (hence any deviation would result in a material breach on FW's behalf)? Again, I think written evidence would help.
Ultimately you have to show that an event happened which you were promised wouldn't to prove a breach of indemnity.
Again, I'm not a contract/commercial lawyer, my knowledge of US contract law is nil and you definitely shouldn't rely on anything I say, yadda yadda.
