UK: Good faith vs qualifying misrepresention Consider the following in the context UK contract law, insurance and consumer rights. When you (a person or legal entity) buys insurance there is some expectation that you properly value the item or items insured. If at the time of a claim, the valuation is found to be incorrect (too low = underinsured) the insurer may avoid the claim or apply an averaging clause, effectively meaning they pay less than they would if you had valued the item(s) correctly and paid a higher premium as a result. This is I believe termed a qualifying misrepresentation. However, there is also an expectation from the consumer that if they acted in good faith they should not be penalised. Many complaints are made to the financial ombudsman and resolved by weighing these up. See for example: https://www.financial-ombudsman.org.uk/data-insight/insight/insight-in-depth-underinsurance-misrepresentation-non-disclosure https://www.financial-ombudsman.org.uk/decisions-case-studies/ombudsman-decisions/search?Keyword=buildings+insurance+underinsurance+&amp;Sort=relevance How might this work in the context of changes to the insured value made over time? Specifically, if you consider a claim on buildings insurance with: A significant undervaluation is being made by the original managing agents. Different managing agents involved over time. Different insurance brokers used over time. Different underwriters used over time. The current managing agent claims that they acted in good faith to review the rebuild cost with various insurers. Some records of increases in rebuild costs significantly beyond inflation levels backing up the claim that this was discussed but nonetheless leaving the property undervalued. To my mind mistakes were made by multiple parties: Previous agents did not value the property correctly Subsequent actors acted in good faith assuming the valuation to be correct The client queried the valuation at least once and as a result the insured amount increased (but there may be no record of these conservations) However, no one made or asked for a proper valuation by the surveyor Has the client acted in &quot;good faith&quot; or made a &quot;qualifying misrepresentation&quot; and how could this be determined (by the ombudsman or anyone else)? Does it make a significant difference if the managing agent (client) is a 'professional' property management company that might be expected to know these things vs a right to manage company or owners association? Likewise would earlier claims made under a previous insurer where the under-insurance issue was not noted be factored in? (for example, if a loss adjustor visited in regards to say an escape of water claim would they be reasonably expected to note the under insurance issue at the time and would that even be relevant if it was for a different broker or underwriter). It is also unclear (to me) who is responsible for the valuation with buildings insurance. If you consider car insurance. The valuation of a car is typically determined by the insurer using a &quot;glass&quot; guide. A consumer might reasonably expect something similar to apply for building insurance based on property values. For items like jewelry, it appears the person taking out the insurance is expected to get it professionally valued.
If at the time of a claim, the valuation is found to be incorrect (too low = underinsured) the insurer may avoid the claim or apply an averaging clause, effectively meaning they pay less than they would if you had valued the item(s) correctly and paid a higher premium as a result. This is I believe termed a qualifying misrepresentation. A qualifying misrepresentation is the consumer's &quot;misrepresentation for which the insurer has a remedy against the consumer&quot; (s4 Consumer Insurance (Disclosure and Representations) Act 2012). This is available when the consumer misrepresented a fact deliberately or recklessly, or carelessly (s5 CIDRA). s5 (4) It is for the insurer to show that a qualifying misrepresentation was deliberate or reckless. (5) But it is to be presumed, unless the contrary is shown— (a) that the consumer had the knowledge of a reasonable consumer, and (b) that the consumer knew that a matter about which the insurer asked a clear and specific question was relevant to the insurer. If a qualifying misrepresentation was deliberate or reckless, the remedy is that &quot;the insurer may avoid the contract and refuse all claims, and need not return any of the premiums paid, except to the extent (if any) that it would be unfair to the consumer to retain them.&quot; (Schedule 1 CIDRA). At the time of application for or renewal or mid-term adjustment of a policy, the consumer must take reasonable care to answer the insurer's questions. Including what is the value at that time (not 15 years ago). s3 Reasonable care (1)Whether or not a consumer has taken reasonable care not to make a misrepresentation is to be determined in the light of all the relevant circumstances. (2)The following are examples of things which may need to be taken into account in making a determination under subsection (1)— (a)the type of consumer insurance contract in question, and its target market, (b)any relevant explanatory material or publicity produced or authorised by the insurer, (c)how clear, and how specific, the insurer's questions were, (d)in the case of a failure to respond to the insurer's questions in connection with the renewal or variation of a consumer insurance contract, how clearly the insurer communicated the importance of answering those questions (or the possible consequences of failing to do so), (e)whether or not an agent was acting for the consumer. (3)The standard of care required is that of a reasonable consumer: but this is subject to subsections (4) and (5). (4)If the insurer was, or ought to have been, aware of any particular characteristics or circumstances of the actual consumer, those are to be taken into account. Necessarily the Financial Ombudsman makes its findings on a case-by-case basis. The Ombudsman corresponds with both parties about who said what when. If this case hinges on an insurer's question, the Ombudsman reads the question to determine if it was a clear question. The Ombudsman examines the evidence - letters, phone call recordings, emails, websites. A few of the case studies at the link you supplied involve changes to property or policy over time. https://www.financial-ombudsman.org.uk/data-insight/insight/insight-in-depth-underinsurance-misrepresentation-non-disclosure Case study 3: 15 years ago the consumer got cover for a watch valued at the time at £1,500; when she was asked at renewal times if she wanted to make any changes to her claim limit she said she didn't (and presumably paid for the policy on that basis). Years later she lost the watch; at the time of her claim it was valued at £5,000 and the insurer refused to offer her more than £1,500. The consumer complained she should have been offered more - the Ombudsman disagreed. Case study 5: there was no evidence to suggest the consumer knew that the previous owner of her car had added alloy wheels. The fact that the insurer's expert was able to spot the alloys was not a reasonable argument to &quot;avoid&quot; the policy on the grounds that the consumer claimed the car had not been modified in any way. The Ombudsman disagreed with the insurer's position that the consumer knew or didn't care that the information she provided was wrong. Case study 6: the consumer replaced his VW Polo with a VW Golf and contacted his insurer to make a mid-term adjustment. The insurer asked him if the VW Golf had been modified in any way from the manufacturer's original specification, for example with alloy or sports wheels. He said no, it hadn't been modified in any way at all. Subsequently he made a claim on the grounds his car was stolen; he told the insurer that the car had sports wheels fitted when he bought it that he thought added a minimum of £1,000 to its value. The insurer decided to &quot;avoid&quot; the policy because the consumer deliberately misrepresented the car had been modified. The Ombudsman agreed with the insurer that the policy could be &quot;avoided&quot;. Buildings, contents, vehicle and jewelry policies tend to be provided on an annual basis and (among other things) what it could cost to replace them at application or renewal time. What it was worth 15 years ago is irrelevant (and might well be too little or too much). It is also unclear (to me) who is responsible for the valuation with buildings insurance. The consumer is responsible for taking &quot;reasonable care&quot; about it. If you consider car insurance. The valuation of a car is typically determined by the insurer using a &quot;glass&quot; guide. A consumer might reasonably expect something similar to apply for building insurance based on property values. Buildings insurance providers ask &quot;how much it would cost if you had to rebuild your home?&quot; They don't ask how much you could sell your home for. Some providers suggest you could hire a residential property surveyor or use their 'calculator' or 'comparison tool'. Expensive jewelry: if you bought it recently then have you got a receipt? If you haven't got a receipt then get it professionally valued. Car insurance: you answer the insurer's questions about your car, e.g. make, year of manufacture, transmission, modifications, the insurer puts your car into one of 50 insurance groups that are a factor insurers use to price your policy. Some providers go into much detail about this kind of thing.
This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around).
Short Answer You are legally entitled to the cost of an adequate replacement (possibly a lightly used previously owned computer) reduced by the amount refunded. This is sometimes called a &quot;benefit of the bargain&quot; measure of the relief to which you are entitled. But as a practical matter, there is no cost effective way of enforcing your legal rights under these facts, that doesn't deeply compromise you chances of success. But, trying to litigate the case on the cheap, because it is unlikely to succeed, makes the effort to enforce your rights even less worthwhile. Your best options are those you could take outside the formal legal process (such as social media gripes, or complaining to &quot;the manager&quot; of the person you dealt with first if they refuse to give you what you want or are entitled to under the law). Long Answer Applicable Law The default rules of law, absent an express contractual term to the contrary, are as follows: In every U.S. jurisdiction in an intra-U.S. transaction, this is governed by the following section of Article 2 of the Uniform Commercial Code, which apart from section and subsection numbering conventions is substantially identical in all of these jurisdictions. It states: § 2-713. Buyer's Damages for Non-delivery or Repudiation. (1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach. (2)Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival. In international transactions between signatory countries, the relevant body of law of the Convention on the International Sale of Goods (CISG) (1980). The primary applicable provisions of that Convention (to which the U.S. is a party) are: Article 45 (1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may: (a) exercise the rights provided in articles 46 to 52; (b) claim damages as provided in articles 74 to 77. (2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies. (3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract. Article 46 (1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement. . . . Article 47 (1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations. (2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not ­deprived thereby of any right he may have to claim damages for delay in performance. Article 48 (1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer ­unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim ­damages as provided for in this Convention. (2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller. (3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision. (4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer. Article 49 (1) The buyer may declare the contract avoided: (a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or (b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed. . . . Article 74 Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. Article 75 If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74. Article 76 (1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the ­contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming ­damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance. (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods. Article 77 A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated. Your Legal Rights This brings us to the question: What buyer protections are there for this? Will I be able to easily sue the manufacturer for monetary losses if the manufacturer refunds me anyway instead of letting me wait for the item to come back in stock? The buyer is legally entitled to the fair market value of obtaining a replacement (perhaps in the secondary market for used laptops) that is equivalent to what was ordered reduced by the amount of money refunded. Practical Vindication Of Your Legal Rights But it is much easier to get the refund than it is to prevail in a lawsuit for the additional damages to which the buyer is legally entitled, a prevailing buyer will probably not get their attorney fees if they prevail, and there is a good chance that the dispute will be sent to arbitration which is, generally speaking (according to strong empirical evidence) a forum with a strong anti-consumer bias (although consumer arbitration can be fairly inexpensive to litigate in, is somewhat more tolerant of lack of legal expertise by a self-represented party, and sometimes despite everything, you win, or can even get an unfair result that works in your favor rather than that of the seller). If you are fighting over $1,500 to $2,500, and you have a fairly complex case to prove that will require expert testimony (and expert witness fees and court costs would be awarded to a prevailing party in addition to the actual damages to which they are legally entitled even though attorney fees are not recoverable in most cases), it will be very hard to find a lawyer willing to take the case. This is because it will take far more than 5-12 hours of attorney work to take the case to its conclusion, which is your maximum cost effective litigation budget, even if everything you win goes to the attorney and you receive no actual benefit. To get even a 50% recovery, your lawyer needs to get the job done ins 2-6 hours depending on your lawyer's hourly rate, which is close to impossible when your legal argument is as difficult to prove as it is in this case. So, basically, the only cost effective way to litigate the case is without a lawyer in small claims court or consumer arbitration, even though representing yourself without a lawyer greatly reduces your chances of success on the merits. On balance, you would usually be better off accepting a refund and acknowledging that you have been damaged in a manner for which the law provides no reliable and cost effective remedy, because the harm is too small. Bad mouthing the offending company on social media (which sometimes results in a PR driven instead of lawyer driven, favorable resolution) would probably be a more fruitful strategy. Complaining to a manager or writing a letter to the President of the company might also be a more fruitful strategy. Sometimes small disputes can be resolved with class action lawsuits, but this isn't a case where this is an option, since it involves just a single individual or a handful of individuals who are harmed. This is also not the sort of case where a state consumer protection agency or attorney general's office or federal consumer protection agency is likely to get involved, since it doesn't involve a systemic deceptive trade practice, just an unfair to you bad situation. Why have these laws if they are so hard to enforce in consumer cases? As my commercial transactions professor in law school (James J. White, the author of the leading legal treatise on the subject) was fond of saying: all legal issues become more interesting if you add more zeros to the amount in controversy. If the computer system you bought had a price of $150,000 that had since gone up to $300,000, this dispute would absolutely be worth litigating. Furthermore, since you could litigate it adequately on the litigation budget that this amount in controversy would make possible, your prospects of successfully vindicating your rights as a buyer, at only a modest discount for unrecoverable litigation costs, would be much greater. Essentially, our system is designed to get close to justice in the most important disputes, as measured by the amount in controversy, while it tolerates small injustices that are not as damaging (in raw absolute dollar terms) as big disputes. This is unfair, but the source of this unfairness is intrinsic to the nature of the problem (rather than simply being a matter of artificial bias created by the people who designed the civil justice system). Also, this unfair bias comes close to maximizing the aggregate improvement in economic value that the legal system as a whole can provide for a given legal of expenditure on this system. Basically, at a fundamental economic level, the economic costs of justly resolving small wrongs can be greater due to the deadweight loss of litigation expenses for the economy as a whole, than the economic benefits of resolving the wrongs fairly (which provides not only justice to those involved but also provides an incentive to act justly in future transactions before one knows whether a problem or dispute will arise).
To me this seems analogous to failing to report a bank error in your favour, which amounts to theft in england-and-wales. I wrote an answer about that here. See that answer for the details but briefly there are five elements to establish under section 1(1) the Theft Act 1968: Dishonesty (section 2) Appropriation (section 3) Property (section 4) Belonging to another (section 5) Intention to permenantly deprive (section 6) As pointed out in the comments, there is a separate offence of abstraction of electricty in section 13 which only has the following elements: dishonesty, use of electricity, and lack of due authority. The courts have also held that electricity cannot be considered &quot;property&quot; for the purposes of the Theft Act (Low v Blease [1975] 1 WLUK 325). Arguably this offence is not commited here as you had due authority (permission from the supplier) to consume the electricity, however I will have a look later to see if I can find some case law on this point and edit it in if I find anything. With that said, &quot;property&quot; includes choses in action (section 4(1)). Choses in action are intangible property which can only be recovered by enforcing a right rather than by taking possession. In the case of a bank error, the resulting bank balance is a chose in action and the crime of theft is committed on that basis. In your scenario, the right to be paid for electricity you consume is a chose in action belonging to the supplier. Although I'm not aware of any case law specifically on this point, it seems to me that depriving the supplier from its right to be paid could satisfy the requirement of appropriation of property. The other elements of theft, as in the case of bank errors, are easily established here. Note that you won't be saved by &quot;if and when the company does discover its error, I have no problem with paying the arrears&quot;. This is because of section 6(1) of the Act which states: A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. Even if you eventually pay for the electrity, your intention was not to do so if they didn't notice. Note also that it is not necessary that there is a contractual requirement to notify the supplier of their mistake. Such a requirement can arise under common law (e.g. A-G's Reference (No 1 of 1983) [1984] 3 All ER 369, elaborated in my other answer). You didn't specify which part of the UK and this answer may not be applicable in Scotland or Northern Ireland.
My findings so far are: It does appear to be against public policy at least in California and Oregon. In California outlawed statutorily — Ins. Code § 533 provides: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” Also on point is Civ. Code, § 1668: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.&quot; Affirmed, for e.g., in Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638, 39 Cal. Rptr. 731, 394 P.2d 571 (Cal. 1964) “[A]n insurer may not indemnify against liability caused by the insured's wilful wrong (Civ. Code, § 1668; Ins. Code, § 533; see, e.g., Abbott v. Western Nat. Indem. Co. (1958) 165 Cal.App.2d 302, 305 [ 331 P.2d 997])” In Oregon, Outlawed by case law: “Despite variations in the language of the policies, this court has interpreted various policy provisions excluding insurance coverage for intentionally-caused injuries similarly. [...] For an exclusion from insurance coverage for intentional conduct to apply, &quot;[i]t is not sufficient that the insured's intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches.&quot; [Citation.]” Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (Or. 1994)
What is a representation and why are they put in contracts? From a practical perspective, a contractual representation is a statement of fact in a signed writing made at an easily provable time that, if false, will support a claim for fraud upon showing the other elements of a claim for fraud that are not also included elsewhere in the contract (e.g. knowledge of falsity, the other party's lack of knowledge of falsity and damages). Some other elements of a common law fraud claim (e.g. publication of the statement to the other party, justifiable reliance, and materiality) are often also established on the face of contract that contains representations identified as such. In a close case, the classification of a statement as a &quot;representation&quot; may also tip the scales if the status of a statement as a statement of a presently existing fact (which a representation must be to be actionable in a fraud action) is disputed. If a representation concerning a key fact foundational to the contract is not true, that might provide a basis to rescind the contract based upon mutual mistake (even if it doesn't amount to fraud). Proof that a false representation was intentionally false may give rise to claims for punitive damages and a right to rescind the contract in addition to a claim for compensatory damages. Representations in a contract also simplify the proof of preliminary facts like the place of incorporation of the signing party, the addresses of the parties, the authority of the person signing it to do so, the fact that someone is not in military service, etc., in a lawsuit arising from the contract on any theory. Sometimes a representation will &quot;estop&quot; a party from asserting something contrary to that representation in litigation. For example, if the seller represents that the transaction is a consumer transaction, and then tries to say that a consumer protection act claim does not apply because it is not a consumer transaction later on in court, when a dispute arises from the transaction, this argument contrary to the representation in the contract is likely to be summarily dismissed based upon that representation. As another example, a party might represent that they agree that $500 an hour is a reasonable fee to pay an attorney in the event that a dispute arises under the contract and a prevailing party in litigation becomes entitled to attorneys' fees, which might reduce litigation over whether a party's attorneys are charging reasonable rates in that context. Similarly, a contractual representation concerning authority to sign is binding on the party for which the signature is made, even if that person doesn't actually have the authority to do so under what is known as the &quot;apparent authority&quot; doctrine in agency law. And, representations often provide context for the transaction that make it easier to interpret other provisions of the contract that would otherwise be ambiguous. For example, a representation that a transaction is being entered into solely for economic business purposes may help a court decide what other representations and disputes are and are not material to the parties, and might cause a court to decide that non-economic damages (i.e. emotional distress) should not be allowed even with respect to fraud claims arising from a misrepresentation (since non-economic damages are as a default rule allowed in connection with fraud claims in many jurisdictions). What are warranties and covenants and why are they put in the contracts? A warranty or covenant is a promise that something will be the case for which there is a remedy if it is not true, without regard to fault on a strict liability basis. Relief for a breach of warranty is generally limited to compensatory damages if breached, and would not generally provide a ground to rescind a contract, but a breach of warranty claim much easier to prove in court because it often doesn't require nearly as much evidence to prove in court as a fraud claim. The evidence beyond the contract itself in a breach of warranty claims is usually in the possession of the aggrieved party prior to bringing a lawsuit. In a fraud claim based upon a representation, in contrast, some of the facts that must be proved to prevail in court (e.g. the knowledge of the person making the statement at the time that the statement was false) can usually only be obtained from testimony or out of court statements from an opposing party, or made to an opposing party. Why call something both a representation and a warranty? One both represents and warrants something in a contract so that both sets of remedies are available if the statement proves to be incorrect. There is an easy to litigate remedy of money damages if the statement is not true, and harder to litigate fraud remedies if the statement meets the additional conditions. Other Fine Points N.B. There are other kinds of contract terms in addition to representations and warranties, such as conditions precedent. But, they are beyond the scope of the question and usually don't appear in a representations and warranties (a.k.a. &quot;reps and warranties&quot;) section. A slightly less common phrase is &quot;represents, warrants and covenants&quot;, with the notion being that a warranty usually concerns something that you are promising is true at the time that the contract is signed, while a covenant is something that you promise will be true in the future or on an ongoing basis (sometimes running with the land when real estate is concerned). So, you might &quot;warrant&quot; in a sale of real estate contract that the house you sold someone is free from defects and &quot;covenant&quot; that you will forever refrain from building any other building in a subdivision that impairs its view of the mountains. Or, you might warrant in a corporate bond contract that no more than 5% of a borrower's accounts receivable are currently overdue, and covenant that you will never let more than 10% of the borrow's accounts receivable enter overdue status. But, in modern American English legal writing, the distinction between a warranty and a covenant has largely collapsed and even many sophisticated big business contract lawyers no longer use &quot;represents, warrants and covenants&quot; language in their contracts.
There is a legal dictum, de minimis non curat lex, which might lead to an exasperated court official refusing to issue your lawsuit (with or without providing the $1 out of his own pocket to save everybody's time); I recommend you look it up. But there is no official term for what you suggest, although many lawyers might off the record provide colourful descriptions. If you wish to waste your money on such a claim, then obviously in your view it is worth pursuing. Clients often say "the principle is more important than the money", though they say so more often before they receive the bills than after.
What you are referring to is a Rule 68 (FED. R. Civ. P. 68) offer of judgment (OOJ). Thus far, nearly every jurisdiction's court of appeals has refused to construe these as being binding on the Plaintiff if the offer is denied, even if it offers complete remuneration, especially in a putative class action. The underlying reasons when applied to a certified class differ fairly substantially from an individual plaintiff or a non-certified class. However, there are some kinds of cases where a Rule 68 offer could never fully compensate (as with cases where subjective or non-substantive forms of damage have been requested). A Rule 68 offer is a cost-flipping mechanism, often used by defense attorneys when they are making what they believe is a fair offer (very rarely is the offer one that is equal to the Plaintiff's demand, which is why this issue rarely arises). If a defense attorney makes an offer of judgment, and then the Plaintiff doesn't accept the offer, they need to get a jury verdict in an amount greater than the offer, or the costs are flipped. So, typically, if there is no OOJ and the Plaintiff wins even a nominal judgment (it can be a dollar) the Defendant always has to pay their costs, which can be substantial. When a Rule 68 offer is made, it's a carefully calculated amount that the defendant thinks the plaintiff can't get in a jury verdict, even if they win, but it's typically less than the demand. The reason a Rule 68 offer is almost never "full compensation" is that a Plaintiff's demand for settlement will typically be somewhere in the area of 3x the amount the Plaintiff's attorney estimates the case to be worth. The Plaintiff is informed of this by their lawyer, so they don't have unreasonable expectations. If you think about it, this makes sense from an ability to negotiate perspective, with the logic being that the Plaintiff wants to get as close to full value as they can, and the defense needs their client to think they've saved them from some huge judgement. If a plaintiff demanded only what the case was worth, it would have no chance of settling for true value, or if the case were to settle, the Defense lawyer wouldn't be able to move the Plaintiff down off their number in any substantial way. This way, the lawyers can play their game negotiating the case down to a fair value. Plaintiff gets what their case is worth and Defendant feels like their lawyer saved them from catastrophe. It's all illusion. The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by Plaintiff does not moot the Plaintiff’s claim. The Plaintiff, a private high school, brought the action against the corporate developer of a college-entrance exam, alleging violations of the Telephone Consumer Protection Act and an analogous state statute related to unsolicited faxes it received. Prior to Plaintiff’s deadline to move for class certification, the Defendant made an Offer Of Judgment, offering Plaintiff the amount it could receive under the two statutes for each fax. Plaintiff did not respond within 14 days, rendering the offer withdrawn under Rule 68, and instead moved for class certification. Defendant then moved to dismiss, arguing that the withdrawn offer rendered Plaintiff’s claims moot and divested the court of subject matter jurisdiction. The district court denied the motion, holding that Plaintiff’s claim was not moot, but certified the question of whether an unaccepted Rule 68 offer, made before certification, moots the entire action and deprives the court of jurisdiction. Generally speaking, aside from very specific types of cases involving contracts, or specific types of statutory relief, a Plaintiff typically includes counts for things like NIED (negligent infliction of emotional distress), pain and suffering, loss of consortium, loss of future earning capacity &ndash; these are a few of the types of counts whereby there is no specific value a defendant could ever point to being "fully satisfied" &ndash; the reason being, a jury needs to determine the legitimate value of these claims unless the Plaintiff accepts a settlement award whereby he/she/it feels as if it's fully satisfied.