Routledge v McKay [1954] 1 WLR 615

📌 Facts

Mr Routledge purchased a second-hand motorcycle and sidecar from Mr McKay. During the negotiations, McKay referred to the registration book and stated that the motorcycle was a late 1941 or 1942 model. Approximately one week later, the parties entered into a written agreement. The agreement recorded the terms of the transaction but did not include any statement about the motorcycle’s age.

It was later discovered that the motorcycle was actually a 1930 model that had been reconditioned and incorrectly described in the registration documents. Routledge brought a claim, arguing that the statement about its age was a contractual warranty.

📌 Issue

The issue was whether McKay’s statement about the motorcycle’s age was a contractual term or merely an innocent representation. The court therefore had to consider whether McKay had intended to make a binding promise about the age of the motorcycle. The Court of Appeal held that the statement about the motorcycle’s age was an innocent representation rather than a contractual warranty.

📌 Decision

Even though the logbook clearly stated the bike's year as 1960, that statement was a mere representation and not a contractual term. The delay between the negotiations and the contract was a contributing factor to the decision.

📌 Analysis

The case is a leading authority on the effect of delay between a pre-contractual statement and the formation of the contract.

It established that:

• a statement made during negotiations does not automatically become a contractual term;

• the longer the interval between the statement and the final contract, the less likely it is to be treated as a term;

• the omission of a statement from a later written agreement may indicate that it was only a representation; and

• the court must determine objectively whether the parties intended the statement to be contractually binding.

The decision confirms that the timing of a statement and the contents of the final written contract are important factors when distinguishing a term from a representation.

Lapse of Time

Approximately one week passed between McKay’s statement and the signing of the written agreement. This delay weakened the argument that the statement formed part of the contract. Where a statement is made immediately before the agreement is concluded, it may be easier to show that the parties intended it to be binding. However, where time passes and further negotiations take place, the statement is more likely to be treated as background information rather than a contractual promise.

Written Agreement

The parties later recorded their agreement in writing, but the document did not mention the age of the motorcycle. The court regarded this omission as important. If the age of the motorcycle had been intended to form part of the contractual obligations, the parties could reasonably have included it in the written agreement. The omission therefore supported the conclusion that the earlier statement was merely a representation.

Source of the Information

McKay did not claim to possess specialist knowledge about the motorcycle’s age. He referred to the registration book and repeated the information recorded in it. This suggested that he was passing on information from another source rather than personally guaranteeing its accuracy. The statement was therefore less likely to amount to a contractual warranty.

Comparison with Bannerman v White [1861]

It is useful to compare Routledge v McKay [1954] with Bannerman v White [1861] because both cases concern the distinction between a contractual term and a mere representation, but the courts reached opposite conclusions because of the surrounding circumstances.

In Bannerman v White [1861], the buyer asked whether hops had been treated with sulphur and stated that the purchase depended on the answer. The seller said they had not. As the statement was fundamental to the contract, it was held to be a contractual term. A comparison table explaining the rationale for this can be viewed below:

Factor	Bannerman v White	Routledge v McKay
Statement made	Seller stated that the hops had not been treated with sulphur.	Seller stated that the motorcycle was a 1942 model.
Importance of statement	Extremely important. The buyer expressly said he would not even ask the price if sulphur had been used.	No evidence that the model year was fundamental to the buyer's decision.
Timing	Statement was made during negotiations immediately before contracting.	A week elapsed between the statement and the written contract.
Written contract	No inconsistency suggesting the statement was excluded.	The written agreement omitted any reference to the motorcycle's age.
Court's decision	Statement was a contractual term (condition).	Statement was a mere representation.

Further Reading

• Contract Terms Revision Sheet

• Bannerman v White Case Summary