EXPRESS AND IMPLIED WARRANTIES

Question 1

Implied Warranties

Answer 1

by default are included in sales of goods covered by UCC, but they can be disclaimed

Question 2

UCC §2-314

Implied Warranties

Answer 2

Merchantability—guarantees that the goods are fit for the ordinary purpose for which those goods would be used
(i) Only applies to merchants

Question 3

UCC §2-315

Implied Warranties

Answer 3

Fitness for a Particular Purpose—goods being sold are fit for the particular purpose for which the buyer intends to use them. This only applies when the seller has good reason to know:

(i) The particular purpose for which the goods are required; and
(ii) That the buyer is relying on the seller’s skill or judgment to select or furnish reasonable goods
(a) This rule applies to all sellers

Question 4

UCC §2-316

Implied Warranties

Answer 4

Excluding/modifying implied warranties of merchantability/fitness

Question 5

UCC §2-316

Merchantability

Answer 5

may be excluded or modified by language mentioning “merchantability” and need not be in writing. If it is in writing, it must be conspicuous—UCC §2-316(2)

(i) Conspicuous: bold type, capital letters, etc.
(ii) Cannot be buried in fine print (back of contract)

Question 6

UCC §2-316

Fitness

Answer 6

may be excluded or modified by language in a writing that is conspicuous—UCC §2-316(2)

Question 7

c) No language necessary to remove implied warranties if:

Answer 7

(i) Contract includes expression such as “as is” or “with all faults”
(ii) Buyer has fully examined the goods before entering into the contract, or has refused to examine the goods when given the opportunity
(iii) Court of dealing, course of performance, or trade usage indicate that the warranty is excluded/modified
d) Warranties cannot be disclaimed when prohibited by Magnuson-Moss Warranty Act

Question 8

UCC §2-316(1)

Answer 8

deals with parol evidence issue

Question 9

UCC §2-316(2)

Answer 9

negation must be conspicuous

Question 10

UCC §2-316(3)

Answer 10

can be implied by certain expressions (as is) or course of performance/dealing

Question 11

UCC §2-313(1)

Answer 11

Express Warranties

Question 12

Express Warranties–> How they are made:

Answer 12

anything that relates to the quality of the goods and arise from statements/conduct of the seller (oral or in writing)

a) Any affirmation of fact or promise made by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain—promise that the goods will confirm to that affirmation of fact
b) Any description of the goods that is made part of the basis of the bargain creates an express warranty that the goods will conform to the description
c) Any sample or model made part of basis of bargain—goods will conform to that model
d) Requires an affirmation of FACT—must distinguish this from “puffery” (opinions—this is the best product)

Question 13

Magnuson-Moss Warranty Act

Answer 13

Consumer Product + Express Warranty—brings in implied warranties as allowed under state law

1) Prohibits a person (not a merchant), who makes express warranty, from disclaiming or modifying any implied warranties that come up under state law
a) Full warranty: entire product for unlimited duration (rare)
b) Partial warranty: specific parts for a specific time (common)
2) Once you warrant something expressly (at all), MMWA applies—the product now must also meet implied warranties of merchantability/fitness (unless state law has specific requirements regarding implied warranties; i.e. Gilbert v. Monaco—AZ state law says contract privity is required for implied warranties)
3) Implied warranties last the same duration as express warranties
4) Parole evidence rule: attempted disclaimer of warranties is effective if done properly