Risk of Loss
Warranties III--Seller's Opinion or "Puffery"
So far it looks as if almost every statement or description made before a sale is actually concluded would be an express warranty. The Code provides a large exception, however, in 2-313(2). After stating that it is not necessary for a seller to use "magic words" such as "warrant" or "guarantee" to create an express warranty, as would have been the case before 1850 at common law, it provides that an "affirmation of the value of the goods" or a "statement purporting to be merely the seller's opinion or commendation of the goods" does not create a warranty. 2-313(2).
Just as the common law courts needed to struggle to define the difference between an affirmation and a promise, so current courts construing 2-313(2) have to define the difference between the "seller's opinion" and an "affirmation of fact." I suppose one way to look at the issue profitably is to posit a continuum. On the one end of the continuum is a statement such as "This car gets 35 mph in city driving." That, obviously, would be an express warranty. On the other end of the continuum would be a statement in which the dealer might say, "Your mother will love the car." Not only is that clearly the seller's opinion but the seller probably knows your mother far less well than you do, and this statement warrants absolutely nothing.
The two tests I gave in class that courts will tend to use to determine if the statement is a warranty or mere "puffing" of a product or "opinion" are: (1) the specificity of the affirmation made and (2) whether it is on a subject where only the seller can have knowledge of the truth of the statement. In class I used the example of the Xerox company selling copy machines to Office Max. A representation that the copiers would need only "infrequent" repair would probably not be an express warranty, while a statement which said that repair was necessary "every 7,000-9,000 copies," probably would be read as an express warranty.
Likewise, if a car salesman was to make a statement that the reason the used car he is selling you does not have shoulder harnesses is that Congress is just about to pass legislation making them optional, you would not be justified in taking this statement as an express warranty because access to the truth or falsity of the statement is available to you. The Valley Datsun case (p. 255) says it this way, "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 be expected to have an opinion (p. 257)." While this statement isn't as clear as one might like, it does suggest that one would confine express warranties to statements concerning which the seller has "special knowledge."
As we have seen, statements such as "This is a great car" would not be seen as warranties, though some courts have thrown a wrench into the analysis by holding that "The car is in excellent condition" does create such a warranty. The lines, therefore, are not hard and fast. When in doubt, think specificity.