Warranty IV--Express Warranty II
Prof. Bill Long 2/24/05
Focusing on "Commendation"
Though the Code has eliminated the distinction between an affirmation of fact and a promise, it has introduced another distinction that can often be confusing. The purpose of this page is to discuss the concept of commendation as it relates to express warranty.
2-313(2) provides:
"It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty."
Cmt 8 provides a helpful starting point for interpreting this. "The provisions of subsection (2) are included, however, since common experience discloses that some statements or predictions cannot fairly be viewed as entering into the bargain." Thus, when someone "puffs" or "pumps" a product, we are told that this is the common practice of sales, and that it does not create a warranty.
But how can you tell the difference between an express warranty, where a statement or description or sample/model goes to the basis of the bargain and where it simply is "mere puffery"? Two tests have emerged in the cases over the years. (1) The Valley Datsun case (p.255) articulated a very useful test to determine what the basis of the bargain means in a practical context. The court said:
"The test of whether a salesman's statement constituted 'affirmations of fact' going to the very 'basis of the bargain' is whether the salesman was asserting a fact of which the buyer was ignorant, or whether he was merely declaring his belief with reference to a matter of which he had no special knowledge and of which the buyer may also have been expected to have an opinion" (p.257).
What this suggests is that if the representation made is something that can easily be "checked out" by both parties, then it doesn't rise to the level of an express warranty. This might especially be relevant if the seller makes a statement to the effect that Congress is about to pass legislation affecting this kind of vehicle. Valley Datsun and other cases would hold that such a representation is not a warranty because this is the kind of information that can easily be checked out by either party.
(2) A second test that has emerged is the "specificity" test. The more specific the representations are regarding the quality or the performance of the goods, the more likely a court will hold that a representation regarding the goods has been made. For example, if a car salesperson says that the car can get "35-40 mpg in city driving," this would be seen as a warranty rather than mere puffery. However, if the salesperson would say, "I know your mother would love this car," s/he is not going to be bound by the statement--i.e., it will not be considered a warranty.
Difficulties
The primary difficulty courts have had is in determining whether a representation that something is in "good working order," is a warranty or simply sales talk. Even going back to the bezoar stone case, which we discussed on 2/22, we have the court saying that every person who sells goods will tell you that their wares are good, and probably that they are even finer than the next person's down the street, but when does the representation that something is "of good quality" become a warranty? Because the courts are all over the map on this one, I think it is safest to say that they come to their conclusion only after a full factual inquiry.
For example, an Illinois court upheld a verdict for breach of an express warranty brought by a disgruntled buyer of a six-year old Ford Taurus based on a statement made by the salesperson that the car was "in good mechanical condition" (Felley v. Singleton, 705 NE 2d 930 (1999)), whereas a Conn. court held that it was not error for the lower court to conclude that oral statements that a used 1980 Ford Bronco was "excellent" and "in mint" and "very good" condition and that it was truly an "unusual" vehicle were not express warranties (Web Press Services, 525 A2d 57 (1987)). Once again, the importance of good advocacy comes to the forefront.
The next essay considers the implied warranties.
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