Express Warranty, Merchantability, or Fitness for a Particular Purpose?
Express and implied warranties arise differently, so identify how the promise was created before analyzing breach.
Express warranty
Affirmations of fact, promises, descriptions, or samples can create an express warranty when they become part of the basis of the bargain.
Merchantability
A merchant seller can provide an implied warranty that goods are fit for ordinary purposes and meet the applicable standard of merchantable quality.
Fitness for particular purpose
This implied warranty can arise when the seller knows the buyer's special purpose and knows the buyer is relying on the seller's skill or judgment.
Disclaimers
Warranty disclaimers must satisfy applicable statutory requirements and cannot always override an express promise already made.
The takeaway
Express warranty comes from affirmations or promises. Merchantability arises from a merchant seller. Fitness arises when the seller knows the buyer's particular purpose and reliance.
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FAQ
Does merchantability require a merchant seller?
Yes.
Does fitness require a particular purpose and reliance?
Yes.
Can an express warranty arise without using the word warranty?
Yes.