Warranty VI
Prof. Bill Long
More on Implied Warranties
I mentioned at the end of the previous essay that the "ordinary" purpose mentioned in 2-314 is meant to be contrasted not with some kind of "extraordinary" purpose, whatever that might mean, but with a "particular" purpose, as expressed in 2-315. That section is much briefer than 2-314 and provides as follows:
"Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose" (2-315).
Three points call for comment. First, this warranty, as well as the implied warranty of merchantability, is established at the time of contracting and not later. Thus, a claim under this section is almost always intensely factually-driven. Second, the provision emphasizes the seller's knowledge of a particular purpose for which goods are desired. Notice that it doesn't say that the buyer has expressed these desires in writing or even in words; past dealings with the party might mean that the seller "has reason to know" what the buyer wants. Third, the seller must show reliance on the buyer's skill or knowledge. The typical situation in which this exists, in the consumer context, is when you let the merchant know precisely why you will be wanting a product and then you rely on the merchant's affirmations or, failing that, the merchant's pointing out the product. The merchant need say nothing about the product being "perfect" for you. As long as your needs are reasonably clear and you rely on the seller's knowledge, you have 2-315 protection.
It is important also to stress that this kind of warranty will often get you places that neither 2-313 nor 2-314 will. For example, in the Tyson case (p.297) the buyer tried to establish an express warranty against the seller because of the latter's representation that the product would "do a good job." But the court held that this was mere expression of opinion rather than a warranty. Yet, Tyson was able to establish a 2-315 claim because it revealed its precise needs to Ciba-Geigy and relied on the salesman's representations about the appropriateness of Dual 8E to kill crabgrass. Thus, if you can try to coax sellers into granting you this kind of warranty, you will be in a stronger legal position.
Back to 2-314
Thus, we see that the "ordinary" purpose envisaged in 2-314(2)(c) is to be contrasted with a "particular" purpose of 2-315. An ordinary purpose is one which the reasonable person would expect the goods would be used to fulfill. The "reasonable expectation" test for "ordinariness" under (2)(c) is increasingly becoming the order of the day among courts. This is evident in their treatment of the cases, like Webster, involving contaminants in food. As I mentioned in class, the older cases tended to define the issue so that if the substance causing problems in the food was a "foreign" substance, you would have a claim, while if the substance was "natural" to the food being consumed, you would not. The typical example would be a chicken bone in the meat or stew.
Yet, over the past several years, and the Webster case is indicative of this trend, the courts have been more willing to look at "ordinary" in the statute as what the reasonable consumer could reasonably expect. If you are going to eat fish chowder in a Boston restaurant, you should expect some fish bones in it. Indeed, if plaintiff had won in Webster, the makers of the chowder would certainly have had to go back and try to fish out, so to speak, all the bones from chowder lest they violate 2-314 and be subject to suit. In the words of the defendant, Boston's famous chowder would then be in danger of becoming the "insipid broth of convalescents." It is a case in which the court wanted to protect the Boston fish industry, no doubt, but it did not use the language of foreign/natural on which to base its decision.
Other 2-314 Provisions
You should also note Comments 3 and 4 under 2-314. The former talks about the kind of implied warranty there might be in used products, while the latter refers to language of "GUARANTEE" that screams at the reader from a warranty but then appears to be disclaimed in fine print in the contract. With respect to the former, you should know that the emphasis of Cmt 3 is on disclosure of defects in used products rather than granting of warranty, but that there is an implied warranty even for used goods only as is "appropriate to such goods." The generality of the language encourages aggressive lawyering, as do many other provisions in the Code.
Finally, when the language of "Guaranteed" appears in big letters of a sales contract, with limiting language following afterwards (Cmt 4), the Comment suggests that the "Guarantee" language will control. Such language will "limit the effect of fine-print disclaimers." The Code's general approach, then, is to resolve contradictory statements in warranties in favor of coverage--for the buyer.
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