California implied warranty of fitness and merchantability


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While most business people readily understand the concept of express warranties, there is a reluctance to fully grasp the power of implied warranties.

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One naturally feels that one should not be liable for a promise never made. The simple fact of American life, however, is that implied warranties form an inherent part of every transaction and that is one of the reasons that American products are considered safer and more reliable than products made in those nations in which such warranties are not enforced. In reality, all of us utilize such implied warranties on a daily basis. Each time you eat out at a restaurant or fast food location and do not become ill from tainted food or purchase oil for your vehicle which works to lubricate your car motor you are relying on such implied warranties and they are critical to the level of trust and reliance on business transactions that is so much a part of American life that it is taken for granted.

If you are in business, learn the implied warranties that pertain and adhere to them. Your own terms and conditions should be carefully reviewed by competent counsel and should form part of every transactions. Spending a few hundred or thousand now will save you tens of thousands of dollars…or your business…in the future. If you are a buyer, take the time to read the terms and conditions since someone has crafted them presumably to limit liability and it is vital to you to understand precisely what you are buying.

One thing neither the buyer or seller can do…is attempt to ignore the warranties. They are as much a part of every transaction as the price.


Founded in , our law firm combines the ability to represent clients in domestic or international matters with the personal interaction with clients that is traditional to a long established law firm. Home Articles Basics warranties. The Basic Concepts: A warranty is a legally binding commitment forming part of the sales contract which assures the buyer that the product or service is free from defects. Implied Warranty of Merchant Seller Warranty against infringement.

Unless otherwise agreed, every merchant seller warrants that the goods will be delivered free of the rightful claim of any third person by way of patent infringement, trademark infringement, or any other intellectual property law infringement. Warranty of fitness for normal use.

A merchant seller makes an implied warranty of the merchantability of the goods sold. This warranty is in fact a larger set of warranties, the most important of which is that the goods are fit for the ordinary purposes for which they are sold. Express Warranties An express warranty is a statement or binding document provided by the seller relating to the goods or services, which statement is part of the basis of the bargain.

Implied versus Express Warranty Discussion Recall that an implied warranty is one that was not made by the seller but is implied thus created by law. A product may be defective because there is: a manufacturing defect, a design defect, inadequate instruction on how to use the product, or inadequate warning against dangers involved in using the product. When the buyer furnishes the seller with exact specifications for the preparation or manufacture of goods, the same warranties arise as in the case of any other sale of such goods by the particular seller.

Sale of Secondhand or Used Goods. As far as the Uniform Commercial Code which applies only to merchants is concerned, there is no difference between the warranties arising in the sale of used goods and those arising in the sale of new goods. Sale of Food or Drink.

Ferris State - Implied Warranty of Merchantability - BLAW

When made by a merchant, a sale of food or drink carries the implied warranty that the food is fit for its ordinary purpose, i. Warranty of Fitness for a Special Purpose A buyer may intend to use the goods for a particular or unusual purpose, compared to the ordinary use for which the goods are customarily sold. Practicalities: While most business people readily understand the concept of express warranties, there is a reluctance to fully grasp the power of implied warranties.

Article Categories. Business Law. This means that buyers have four years in which to discover and seek a remedy for problems that were present in the product at the time it was sold. It does not mean that the product must last for four years. It means only that the product must be of normal durability, considering its nature and price. A special note is in order regarding implied warranties on used merchandise.

An implied warranty of merchantability on a used product is a promise that it can be used as expected, given its type and price range. As with new merchandise, implied warranties on used merchandise apply only when the seller is a merchant who deals in such goods, not when a sale is made by a private individual. If you do not offer a written warranty, the law in most states allows you to disclaim implied warranties. In order to disclaim implied warranties, you must inform consumers in a conspicuous manner, and generally in writing, that you will not be responsible if the product malfunctions or is defective.

It must be clear to consumers that the entire product risk falls on them. You must specifically indicate that you do not warrant "merchantability,' or you must use a phrase such as "with all faults," or "as is. For specific information on how your state treats "as is" disclosures, consult your attorney. In those states, sellers have implied warranty obligations that cannot be avoided.

Federal law prohibits you from disclaiming implied warranties on any consumer product if you offer a written warranty for that product see What the Magnuson-Moss Act Requires or sell a service contract on it see Offering Service Contracts.

You should be aware that even if you sell a product "as is" and it proves to be defective or dangerous and causes personal injury to someone, you still may be liable under the principles of product liability. Selling the product "as is" does not eliminate this liability. Express Warranties Express warranties, unlike implied warranties, are not "read into" your sales contracts by state law; rather, you explicitly offer these warranties to your customers in the course of a sales transaction.

They are promises and statements that you voluntarily make about your product or about your commitment to remedy the defects and malfunctions that some customers may experience.

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Express warranties can take a variety of forms, ranging from advertising claims to formal certificates. An express warranty can be made either orally or in writing. While oral warranties are important, only written warranties on consumer products are covered by the Magnuson-Moss Warranty Act. For example, a wristwatch would have to be at least of average quality as compared to other watches in the same price range, it must tell time, and it cannot come in a box labeled "Rolex" unless it is, in fact, a "Rolex.

A seller does not make an implied warranty of merchantability when he sells goods of a kind that he does not normally sell. For example, a clothing store selling shirts and suits impliedly warrants that the shirts and suits are merchantable because shirts and suits are the kind of goods a clothing store typically sells.

CACI No. 1232. Implied Warranty of Fitness for a Particular Purpose - Essential Factual Elements

On the other hand, if the store sells to the store next door an extra display case it no longer needs, the display case is not subject to an implied warranty of merchantability because clothing stores generally do not sell display cases. Of course, if the seller makes an express warranty regarding the display case, it will be held to any such warranty, but none will be implied unless the goods being sold are goods of a kind the seller normally sells.

The implied warranty of fitness for a particular purpose applies if the seller knows or has reason to know that the buyer will be using the goods he is buying for a certain purpose. If the seller knows the purpose for which the goods are to be used, the seller impliedly warrants that the goods being sold are suitable for that specific purpose.

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For example, a car salesman may sell a car that is perfectly suitable for everyday driving, and therefore is merchantable. But if the car salesman knows the buyer wants to use the car as a race car, the car salesman also impliedly warrants that the car is suitable to use for racing. The rationale behind the implied warranty of fitness for a particular purpose is that buyers typically rely on the seller's skill and expertise to help them find the specific goods that meet their specific need. A buyer who goes to an appliance store may know he wants a refrigerator, but he relies on the appliance salesman to find the specific refrigerator that fits his house, is big enough for his family, and meets any other specific requirements he might have.

Accordingly, it is unfair for a seller to sell something they know will not do the job and later tell the buyer it is not his or her fault it did not work. Because warranties typically only become an issue when a buyer is dissatisfied, a prudent seller tries to limit the scope of the warranties he makes before a problem arises. Interestingly, the U. In keeping with the idea that the purpose of the U. This broad rule is followed by some guidelines. Generally, a seller who wants to disclaim U. A general statement that there are "no warranties, express or implied" is usually ineffective.

Just how express a disclaimer needs to be depends on the kind of warranty being disclaimed.

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An express warranty must be expressly disclaimed. A disclaimer that disclaims the implied warranty of merchantability must specifically mention "merchantability" in the disclaimer. Finally, a seller may disclaim all implied warranties by stating that the good is being sold "as is," "with all faults," or by stating some other phrase that makes it plain to the buyer there are no implied warranties.