3. The seller, through words or behavior,
makes promises about a good
Statements by the seller may be
interpreted as an express warranty if the
buyer has no knowledge or does not deal
in the goods the seller deals in
Statements by the seller may be
interpreted as an opinion if the buyer as
knowledge of the good
4. Facts:
◦ Randall Bobholz purchased 1998 Glastron ski boat
from John Banaszak for $12,500
◦ Boat was listed “in perfect condition” on eBay
◦ 2 weeks later while Randall was working on boat,
engine “just died”
Issue: Did the statement in the
advertisement constitute an express
warranty?
Decision: Yes, there was an “affirmation” of
fact relating to the good becoming part of the
“basis of bargain”
5. Arise by operation of law and exist
without any intention of the seller to
create it
A conclusion or inference of law,
pronounced by the court, on facts
admitted or proved before the jury
6. Implied warranty that the goods are
merchantable- fit for their ordinary
purpose
Imposed by law in the contract of sale
Under Code, applies to the selling of food
or drink
Defense- the warranty was effectively
disclaimed or limited
Disclaimers possible as long as not
unconscionable
7. The goods will be fit for that particular
purpose for which the buyer needs the
goods; seller knows that the buyer is relying
on the seller to select goods suitable for that
purpose
Can be told by buyer or implied from
circumstances
Defenses- seller exercised reasonable care,
buyer assumed rick, buyer was contributory
negligent
Disclaimers not generally effective
8. Protects the buyer in his ownership of the
goods bought
In any contract for sale of goods, seller
warrant to the buyer that he has the right
to sell them
9. Under Code- parties to a contract have, within
certain limits, the right to agree to relieve the seller
from all or part of the liability for express or implied
warranties
10. In order to not be liable for express
warranties, the seller should try to avoid
making any (difficult because seller likely
to make statements about the goods)
Including a disclaimer clause in not likely
to succeed as it may be disregarded on
the ground that it is inconsistent with the
express warranty
11. To exclude Implied Warranty of
Merchantability, seller must specifically
mention “merchantability” in exclusion
To exclude Implied Warranty of Fitness,
must be in writing and must be
conspicuous
Can be excluded by circumstances of sale
(ex. “as is” or “with all faults”)
12. Court has authority to refuse to enforce a
particular clause or entire contract if it
finds it unconscionable
Most likely unconscionable in case of
personally injured consumer
Least likely unconscionable where plaintiff
is merchant trying to recover for property
or economic loss
13. Sellersmay try to limit their liability for
breach of warranty
May be enforced unless it is
unconscionable or if the limitation causes
warranty to fail of its essential purpose
14.
15. Whenthe product is defective and injures
someone, the question is whether the
injured person can benefit from the
warranty and recover from the seller or
manufacturer for breach of warranty
16. Inthe past, injured purchasers could not
recover directly from the manufacturer,
however today an injured purchaser can
recover from both the immediate seller
and the manufacturer
17. The code extends warranty protection to:
◦ He who is in the household of the purchaser, is
reasonably expected to use, consume, or be
affected by the good, and is injured by breach
of warranty
◦ He who is a bystander or employee of the
purchaser, is reasonably expected to be
affected by the good, and was injured by
breach of warranty
18. Facts:
◦ 1997 Carolyn Bryant was being treated for cardiac
problems, prescribed drug Betapace (samples given
to her by her doctor from Hoffman-La Roche)
◦ A couple weeks after an increased dosage, she died
◦ Bryant’s husband tried to sue Hoffman-La Roche
Issue: Was Mrs. Bryant barred from claiming
benefit of implied warranties of
merchantability and fitness on grounds there
was no privity b/w her and Hoffman-La Roche
since she did not purchase directly from them
Decision: Yes
20. Provide minimum warranty protection for
consumers
Increase consumer understanding of
warranties
Ensure warranty performance by
providing useful remedies
Encourage better product reliability by
allowing consumers to choose among
products based only likely reliability
21. Warranty must be enforceable
A clear description of what is covered and what is not
Statement of what the maker will do and what will be paid
for (or not) if product is defective, malfunctions, or does
not conform to warranty
Time warranty begins and its duration
How to obtain warranty service and info about any informal
dispute settlement mechanisms
Any limitations on implied warranties, any exclusions or
limitations on relief, explanation when those may not be
allowed
Statement that consumer has certain legal rights under the
warranty
22. Warrantor will fix/replace any defective product
Not limited in time
Does not either exclude or limit payment for
consequential damages unless conspicuously
printed on warranty
If irreparable or has not been repaired after
reasonable number of efforts, consumer may
choose between a refund and a replacement
Warrantor cannot impose unreasonable duties on
consumer or a duty not to modify the product
Warrantor is not required to fulfill warranty terms
if problem was caused by damage to the product
through unreasonable use
Does not have to cover whole product
23. Anyother warranty covered by the act
that does not meet the standards for a full
warranty
24. Act
requires the seller to make the written
warranty terms available to the
prospective buyer before the sale
25. FTC enforces the disclosure provisions of
the warranty act and regulations
Consumers have right to sue maker for
failure to fulfill terms of warranty
Consumer can sue manufacturer if
manufacturer offers the warranty, or the
retailer if the retailer grants the warranty
26. Product Liability in General- seller is liable for breach
of warranty, negligence, and strict liability
27. Failure to inspect
Improperly manufacturing goods
Failing to disclose known defects,
adequately warn about known dangers, or
instruct about proper use
Failing to use due care in designing goods
28. Middlemen have no duty to inspect new
prepackaged goods
Obvious danger- one factor to be
considered regarding liability
29. Manufacturer’s
duty extends to anyone
who may foreseeably be injured if
manufacturer does not exercise its duty of
care
30. Liability without fault imposed on manufacturers and
seller of unreasonable dangerous products
31. Persons
injured by defective produts were
not always able to recover for injuries
under negligence or breach of warranty
32. Plaintiff must show
◦ A product has been sold in a defective condition
that makes it unreasonably dangerous to user/
consumer
◦ The seller engaged in the business of selling such a
product
◦ The product is expected to and does reach
consumer w/o substantial change in condition in
which it is sold
◦ Consumer or other person sustains physical harm
or property damage because of defective condition
33. Whether anything else could have been
done to make the product safer, given the
practical and technological limitations of
the time in determining whether a product
is inherently dangerous or defectively
designed
34. Facts: Roberto Martinez was injured while
installing a Goodrich tire. Despite a prominent
warning label, he attempted to mount it on a
16.5 inch rim. He sued Goodrich under strict
liability.
Issue: Is a manufacturer strictly liable for injuries
caused by plaintiff’s failure to follow a suitable
warning if the manufacturer knows of a safer
alternative product design?
Decision: Yes, a claimant must establish that the
defendant could have provided safer alternative
design (section 402A of the Restatement (Third)
of Torts).
35. Product has been substantially changed
since it left manufacturer or seller
Buyer was adequately warned about the
unreasonable danger
Product was state of the art when
designed of manufactured
Buyer used product in an unintended or
unforeseen manner
Buyer assumed all obvious risk of injury
36. Designed to take the risk of product-
related injuries off the consumer and
place them on the manufacturer
Created because increasing number of
people were being injured by standardized
products whose manufacturers could not
be identified
37. Laws limiting sellers’ liability
◦ Defining what is state of the art
◦ Protecting a manufacturer if its products meet
government safety standards
◦ Protecting subsequent sellers from suit if the
manufacturer is available
◦ Using comparative fault to reduce a damage
award if the plaintiff contributed to his or her
own injury
38. Bars the bringing of a tort-based product
liability suit after a certain number of
years (usually 10) from the date the
product is first sold to a user
