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Torts FYLSE > Page 34 > Flashcards

Page 34 Flashcards

1
Q

What is breach of warranty?

A

Liability for a product not being as it was represented in an express or implied warranty

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2
Q

What governs breach of warranty for strict liability?

A

UCC

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3
Q

If an injury is only to the product itself, what is the only place that you can bring a claim?

A

Breach of warranty

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4
Q

Breach of warranty gives remedies for people that what?

A

Have bought or been exposed to products that don’t satisfy ordinary expectations because the product is not as represented

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5
Q

What does the plaintiff have to show in order to bring a breach of warranty claim?

A

That a warranty existed and the product didn’t conform to it

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6
Q

What is the statute of limitations for breach of warranty?

A

A breach must commence within four years and begins running from the time the product is sold or delivery is made

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7
Q

If a plaintiff seeks recovery for pure economic loss under breach of warranty, what must be present?

A

Privity between the plaintiff and the last commercial seller in the chain of distribution of the defective product

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8
Q

UCC only applies to the sale of goods, but breach of warranty can apply to what also?

A

The construction and sale of a new home

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9
Q

Can food in restaurants be subject to implied warranty?

A

Yes, because it is sold

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10
Q

Under breach of warranty, if the product is defective what happens?

A

The warranty is breached and the manufacturer is automatically liable, whether or not to care was used

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11
Q

What is the rule about contract privity for breach of warranty?

A
  • traditionally: had to have privity
  • modern: applies to retailers, manufacturers, other sellers, family, guests, other users, and encompasses any dangerous product and anyone within the foreseeable scope of use
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12
Q

What are the two types of breach of warranty?

A

Implied and express

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13
Q

What is an implied warranty?

A

If you sell goods, you imply that they are fit for their ordinary purpose and are as good as the seller claims

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14
Q

What are the two different types of implied warranty?

A
  • implied warranty of merchantability

- implied warranty of fitness for a particular purpose

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15
Q

What is implied warranty of merchantability under implied warranty for breach of warranty?

A

When a merchant deals in goods of a particular kind, he warrants that they will pass within the ordinary description of those goods, that they will be safe, and can be used for their intended purpose

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16
Q

Warranty implies that the goods will be at least what?

A

Of fair average quality

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17
Q

What products are subject to implied warranty of merchantability?

A

All products

18
Q

If you make a laptop that catches on fire and is completely destroyed within five minutes of its first use, what have you made?

A

A product that is not merchantable

19
Q

Every seller impliedly warrants the fitness of the products sold for what?

A

Its normally intended use

20
Q

Every seller impliedly warrants the fitness of the product sold regardless of what?

A

Whether or not it was tested, or the dealer acted negligently

21
Q

Implied warranties extend to whom?

A

At least the members of the consumer’s family, and many jurisdictions say anyone foreseeably injured

22
Q

Even if a warranty disclaimer is valid, who does it not apply to?

A

Non-purchasers

23
Q

What are the six ways a product must conform to its implied warranty of merchantability?

A
  • product must pass without objection under contract description
  • be fair average quality
  • be fit for the ordinary purposes of use
  • be of even kind, quality, and quantity for each unit
  • adequately contained, packaged, and labeled
  • conform to the promises on the label
24
Q

What is implied warranty of fitness for a particular purpose?

A

When the seller at the time of contracting knows/had reason to know the purpose the product will be used for, and the buyer relies on the seller’s skill/judgment to select/furnish the appropriate goods

25
Q

What is an express warranty?

A

When a defendant gives a representation about the product that becomes the basis of the bargain (describing the quality, performance, construction, or durability of the product) and buyer relies on the warranty

26
Q

What are some examples of express warranties?

A

Ads or statements made during negotiations

27
Q

Express warranties can be what?

A

Oral or written

28
Q

What are some ways expressed warranties can be made?

A

Pictures, samples, models, labels, advertisements, defendant’s promise, an affirmation of fact, etc. as long as it accompanies the sale

29
Q

An affirmation for an express warranty must be what?

A

Fact and not opinion

30
Q

Does puffing count for express warranty?

A

No, because opinion or judgment doesn’t count

31
Q

In order for an express warranty to apply, the representation must be what?

A

Specific and unambiguous

32
Q

For express warranty, courts usually presume the buyer relied on the representation unless what?

A

The seller can prove he didn’t

33
Q

Can nationwide advertising claiming a product was engineered for safety be considered an express warranty?

A

Yes because the language is specific enough that it isn’t just puffing

34
Q

What are available damages under breach of warranty?

A

The same as negligence/SL, but economic loss is recoverable here as long as the plaintiff is in privity with defendant

35
Q

What are defenses to breach of warranty?

A
  • failure to notify seller
  • comparative negligence
  • assumption of the risk
  • warranty disclaimers
36
Q

How is failure to notify the seller considered a defense to breach of warranty?

A

A buyer must tell the seller of the breach of warranty within a reasonable time after it has been discovered or should’ve been discovered

37
Q

Does the failure to notify seller defense count if the plaintiff is a user of the product or a bystander that suffers injury?

A

No

38
Q

Is contributory negligence applicable to breach of warranty?

A

No

39
Q

How does assumption of the risk become a defense to breach of warranty?

A

If the plaintiff voluntarily and unreasonably continues to use a product after discovering it isn’t fit for the purpose he bought it for or not of merchantable quality, defendant is exonerated from liability for injuries to person or property

40
Q

What are the two different kinds of products liability?

A

Strict liability in tort and breach of warranty

Torts FYLSE (61 decks)

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