stated by the seller. Therefore, the sales contract is based, in part, on the understanding that the goods or
services being supplied by the seller will conform to the description, or any sample, that has been provided.
There are myriad ways in which the seller can make statements as to the characteristics of the goods.
Here are a few examples of express warranties:
“Wrinkle-free shirt”
“Lifetime guarantee”
“Made in the USA”
“This orange juice is not from concentrate”
“24k gold”
There is not a specific way that words must be formed to make an express warranty valid. Importantly, the
sales contract does not need to explicitly state that a warranty is being intended. It is enough that the seller
asserts facts about the goods that then become part of the contract between the parties. However, the courts
do apply a reasonableness test of reliance upon warranties. Puffery, or language used to bolster sales, is
lawful, and the consumer is required to apply reason when evaluating such statements. For example, buyers
are expected to use reason when judging seller claims such as “this sandwich is the best in the world.”
Obvious sales talk cannot ordinarily be treated as a legally binding warranty.
A breach of the warranty occurs when the express warranty has been found to be false. In such
circumstances, the warrantor is legally liable just as though the truth of the warranty had been guaranteed.
The courts do not accept as a defense:
•
Seller claims the warranty was true.
•
Seller claims due care was exercised in the production or handling of the product.
•
Seller claims there is not any reason to believe that the warranty was false.
Implied Warranties
In certain circumstances where no express warranty was made, the law implies a warranty. This statement
means that the warranty automatically arises from the fact that a sale was made. With regard to implied
warranties, the law distinguishes between casual sellers and merchant sellers, with the latter held to a higher
standard, given that they are in the business of buying or selling the good or service rendered. For example,
unless otherwise agreed, goods sold by merchants carry an implied warranty against claims by any third party
by way of trademark infringement, patent infringement, or any other intellectual property law infringement.
This type of warranty is known as the warranty against infringement. Another implied warranty provided by
merchant sellers is the warranty of fitness for normal use, which means that the goods must be fit for the
ordinary purposes for which they are sold.
It is important to note that if express warranties are made, this does not preclude implied warranties. If an
express warranty is made, it should be consistent with implied warranties, and can be treated as cumulative, if
such a construction is reasonable. If the express and implied warranties cannot be construed as consistent
and cumulative, the express warranty generally prevails over the implied warranty, except in the case of the
implied warranty of merchantability, or fitness for purpose.
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Chapter 8 Sales Contracts
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