Page 34 Flashcards
What is breach of warranty?
Liability for a product not being as it was represented in an express or implied warranty
What governs breach of warranty for strict liability?
UCC
If an injury is only to the product itself, what is the only place that you can bring a claim?
Breach of warranty
Breach of warranty gives remedies for people that what?
Have bought or been exposed to products that don’t satisfy ordinary expectations because the product is not as represented
What does the plaintiff have to show in order to bring a breach of warranty claim?
That a warranty existed and the product didn’t conform to it
What is the statute of limitations for breach of warranty?
A breach must commence within four years and begins running from the time the product is sold or delivery is made
If a plaintiff seeks recovery for pure economic loss under breach of warranty, what must be present?
Privity between the plaintiff and the last commercial seller in the chain of distribution of the defective product
UCC only applies to the sale of goods, but breach of warranty can apply to what also?
The construction and sale of a new home
Can food in restaurants be subject to implied warranty?
Yes, because it is sold
Under breach of warranty, if the product is defective what happens?
The warranty is breached and the manufacturer is automatically liable, whether or not to care was used
What is the rule about contract privity for breach of warranty?
- 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
What are the two types of breach of warranty?
Implied and express
What is an implied warranty?
If you sell goods, you imply that they are fit for their ordinary purpose and are as good as the seller claims
What are the two different types of implied warranty?
- implied warranty of merchantability
- implied warranty of fitness for a particular purpose
What is implied warranty of merchantability under implied warranty for breach of warranty?
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
Warranty implies that the goods will be at least what?
Of fair average quality
What products are subject to implied warranty of merchantability?
All products
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 product that is not merchantable
Every seller impliedly warrants the fitness of the products sold for what?
Its normally intended use
Every seller impliedly warrants the fitness of the product sold regardless of what?
Whether or not it was tested, or the dealer acted negligently
Implied warranties extend to whom?
At least the members of the consumer’s family, and many jurisdictions say anyone foreseeably injured
Even if a warranty disclaimer is valid, who does it not apply to?
Non-purchasers
What are the six ways a product must conform to its implied warranty of merchantability?
- 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
What is implied warranty of fitness for a particular purpose?
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
What is an express warranty?
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
What are some examples of express warranties?
Ads or statements made during negotiations
Express warranties can be what?
Oral or written
What are some ways expressed warranties can be made?
Pictures, samples, models, labels, advertisements, defendant’s promise, an affirmation of fact, etc. as long as it accompanies the sale
An affirmation for an express warranty must be what?
Fact and not opinion
Does puffing count for express warranty?
No, because opinion or judgment doesn’t count
In order for an express warranty to apply, the representation must be what?
Specific and unambiguous
For express warranty, courts usually presume the buyer relied on the representation unless what?
The seller can prove he didn’t
Can nationwide advertising claiming a product was engineered for safety be considered an express warranty?
Yes because the language is specific enough that it isn’t just puffing
What are available damages under breach of warranty?
The same as negligence/SL, but economic loss is recoverable here as long as the plaintiff is in privity with defendant
What are defenses to breach of warranty?
- failure to notify seller
- comparative negligence
- assumption of the risk
- warranty disclaimers
How is failure to notify the seller considered a defense to breach of warranty?
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
Does the failure to notify seller defense count if the plaintiff is a user of the product or a bystander that suffers injury?
No
Is contributory negligence applicable to breach of warranty?
No
How does assumption of the risk become a defense to breach of warranty?
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
What are the two different kinds of products liability?
Strict liability in tort and breach of warranty
