The question whether or not a statement made by one party to the other prior to the conclusion ofthe contract has been incorporated into the contract as a term is one ofsome importance. If the statement has been incorporated into the contract as a term, then a failure to comply with it without lawful justification will amount to a breach of contract. On the other hand, ifthe statement has not been so incorporated then any liability cannot be for breach of contract but must be for misrepresentation. The distinction between a term and 286 | THE TERMS OF THE CONTRACT a representation is an important one but it is not as significant as it used to be. The primary significance ofthe distinction lies in the different remedial responsesto a breach ofcontract and a misrepresentation. We shall deal with the different remedial responses in more detail in the chapter on misrepresentation (see Chapter 17). Here it suffices to use one remedial difference for illustrative purposes. Every breach ofcontract gives rise to a claim for damages (in the case where the claimant suffers no loss as a result ofthe breach, she will still be entitled to recover damages buttheywill be nominal). But not everymisrepresentation gives rise to a claim for damages. Indeed, prior to the decision ofthe House of Lords in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465 and the subsequent enactment of the Misrepresentation Act 1967, damages could only be recovered for fraudulent misrepresentations