Warranty II
Prof. Bill Long 2/22/05
Warranty Comes to America
If Chandelor is the classic English case on warranty of goods, Seixas (NY, 1805) is its American counterpart.* In this case the defendant
[*I am using Professor Brook's brief description of the case as the basis for my account.]
sold some wood to plaintiff, which had been advertised as "brazilletto," an expensive wood. The bill of sale, which the buyer received, called the wood "brazilletto." The invoice the seller received from the person who sold it to him also mentioned it as "brazilletto." The court says, "In fact, neither party knew it to be other than brazilletto, nor was any fraud imputed." It turned out that the wood was peachum, an inferior wood "worth hardly anything." Buyer sued the seller for the return of his money, but recovered nothing. Even though the goods were described as "brazilletto," the court held that it was a "clear case for the defendant." Why? Well, the purchaser has to be on his own vigilance. He can inspect the goods and, he could also have made the seller expressly warrant the goods. Hence the court's conclusion:
"The mentioning the wood, as brazilletto wood in the bill of parcels, and in the advertisement some days previous to the sale, did not amount to a warranty to the plaintiffs."
This is "on all fours," as we say, with the conclusion of Exchequer two centuries previously.
Change Comes
I hope your reaction so far is "Huh?" If this is the way that consumer law is to work, we are in a heap of trouble, for unless every consumer climbed inside of every washing machine, so to speak, and then got the seller to use the magic word "warrant" in selling the washer, there would be no protection for the consumer if things didn't work. But our society was so committed to the unfettered doctrine of "let the buyer beware" (caveat emptor) that this kind of result was not unusual.
The classic case abandoning this approach was in 1872, Hawkins v Pemberton (also from NY). In this case the defendant sold several barrels labeled "Blue Vitriol" to the plaintiff. Defendant had simply bought the barrels from its supplier and never opened the barrels to make sure it was indeed "Blue Vitriol." But, as luck would have it, the "Vitriol" turned out to be a different color and was of much poorer quality. Even though defendant argued that Seixas controlled, and since no "warranty" was made by seller the buyer had none, the court concluded:
"The rule [in Seixas] has been thoroughly overturned since the courts hold that any positive affirmation or representation as to the character or quality of an article sold may constitute a warranty."
Two points to note in this decision are that the court collapses the distinction between affirmation and warranty and that it indicates that decisions contrary to Seixas had been occurring for quite some time already. In other words, times had changed, and change in warranty law was one reflection of the changing times.
The Uniform Sales Act of 1906
As I mentioned in one of the earliest classes, the Uniform Sales Act ("USA") was the predecessor to Article 2, and was the first attempt to codify by statute the American commercial law. It was only adopted in about half the states, and did not achieve the kind of uniformity of interpretation that the drafters of Article 2 envisioned for the UCC. Nevertheless, the USA had a warranty provision that both codified the growing case law and added a twist to it. It would adopt this more "liberal" (i.e., consumer-friendly) definition of warranty, but it added the notion of reliance. Both of these items then would either be adopted or refined in Article 2. Section 12 of the USA is the warranty provision:
"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon."
Very interesting provision. Note that the USA talks about "any affirmation of fact OR promise." It has collapsed the distinction so important to nearly three centuries of the CL in seven words. From now on the existence of a warranty would not hinge on whether a statement could be characterized as a "promise" or an "affirmation of fact." Notice, just for a minute, the language of 2-313(1)(a): "Any affirmation of fact or promise..." Directly taken from the USA.
But notice also what the USA added. The words only function as an express warranty if it induces the buyer to purchase the goods--that is if the buyer actually relies on the affirmation. Thus, it would appear that the burden of proof is on the buyer to show that s/he relied on the affirmation of the seller. Thus, I suppose one could make an argument that if the seller affirmed something about the product that turned out not to be true, but if it was in an advertisement that the buyer never saw, then the buyer could not claim that it was a warranty that applied to him or her. At least this is a litigable point.
Conclusion
The background in these last two essays should prepare you to understand rather fully the issues broached in Smith v. Zimbalist. By the late nineteenth/early twentieth century, the courts used the doctrine of mutual mistake to void a contract where a warranty had been given that was not true. Now with this semi-rich historical overview we are ready to look at the provisions of the UCC in 2-313 through 2-316.
[Next]
Copyright © 2004-2007 William R. Long |