Warranty I: A Brief History
Prof. Bill Long 2/22/05
A Glance Deep into the Common Law
This essay will be the first of many I write on that all important subject under Article 2: warranties. Warranties are statements, descriptions or samples of goods given by a seller that act as assurances that the goods purchased are what they purport to be. If the goods later turn out not to function in accordance with the assurances, the buyer has a cause of action for breach of warranty against the seller. Though there is a long history of warranty under the common law, the essence of the doctrine for sales law is captured today in 2-313 through 2-316. The Code speaks of three kinds of warranties in those sections, but there really is only one concept of warranty, given in the definition. However, to understand the full flavor of warranties today, it is helpful to turn briefly to a conceptual and historical survey.
The Concept: Freedom of Contract/Buyer Beware
I have already mentioned the idea several times, and you no doubt have run into the concept throughout your legal education, that our commercial system is based on the notion of freedom of contract. Independent individuals enter freely into agreements, bind themselves to do things, and then deliver on their promises. We respect the ability of individuals to choose, and protect even their ability to make dumb mistakes and bad bargains. Yet, even at CL this freedom of contract was not unlimited. It was restrained by concepts of fraud, duress or coercion, so that if someone made a "contract" with me by holding a gun to my head while I signed an "agreement," a CL court would void the contract. It was further limited by ideas of minority of the individual or insanity. Thus, the idea was that people were free in general to make the bargains they desired; the law would only "save them" in limited circumstances.
The doctrine of warranty was another way that the law could "save" people who entered into a contract for the purchase of goods and the goods turned out to be faulty. It would void the contract of sale if the seller had "warranted" the goods were of a sort or quality when they were not. Yet, the remedy was only available in a very limited number of instances, as the following "classic" case indicates.
The Case: Chandelor v. Lopus (1603)
This was an "action upon the case" (one of the 20 or so common law writs of personal or personal/real action) in the Exchequer court (one of the three CL courts: the others were King's Bench and Common Pleas). I quote from the reporter: "Action upon the case. Whereas the defendant being a goldsmith, and having skill in jewels and precious stones, had a stone which he affirmed to Lopus to be a bezar-stone*, and sold it to him for one hundred pounds [quite a lot
[*a "bezar" or "bezoar" stone is, according to the unabridged, "any of various concretions found in the alimentary organs (especially of ruminants) formerly believed to possess magical properties."]
of money in those days], [but] it was not a bezar-stone: the defendant pleaded not guilty, and verdict was given and judgment entered for the plaintiff in the King's bench."
Nevertheless, error was alleged and the matter brought to Exchequer (I don't know all the rules of appeal from one of the royal courts to another, but perhaps because the expertise of Exchequer was in money matters, defendants could have made the argument that it belonged in Exchequer). On appeal, the defendant argued that the declaration (i.e., plaintiff's complaint) didn't allege enough matter to charge the defendant with warranting it to be a bezar stone because, in fact, the jeweler was ignorant of whether or not this concretion was a bezar stone.
Exchequer reversed King's Bench and held that
"the bare affirmation that it was a bezar-stone, without warranting it to be so, is no cause of action: and although he knew it to be no bezar-stone, it is not material; for every one in selling his wares will affirm that his wares are good, or the horse which he sells is sound; yet if he does not warrant them to be so, it is no cause of action, and the warranty ought to be made at the same time of the sale."
The Common Law Rule
Chandelor stated the CL rule: that unless the merchant specifically said that he warranted that the object was what it purported to be, there would be no action for breach of warranty. The "mere affirmation" that something is a bezar stone, therefore, was said to be different from the "promise" or "warranty" that it was such a stone.
You might see this as verbal quibbling, and I think it is, but the philosophy of the common law courts was extremely stingy as it related to consumers/purchasers. Why do you think that was the case? The more I read old common law cases, and we don't spend enough time in law school teaching you how to do that, the more I see that the CL system of "justice" was one that was extremely solicitous of the interests of the propertied/monied classes. (Have things changed?) The funny thing for me, however, is that what appears to be such an obvious quibbling over words (what indeed, is the difference between an affirmation and a promise?) is so easy to spot today. Will our so-called neutral principles of justice, in a few centuries, likewise be so easily exposed as simply the clever verbal manipulations of courts to protect the monied interests in our society? It gets you thinking.
Well, I need to return to warranties, but this is how it all starts, at least from the perspective of the modern doctrine of warranty. There is a huge difference, at least from 1600-1900, between an affirmation and a promise or warranty.
Copyright © 2004-2007 William R. Long