What is a Warranty? |
Steve Lehto: Lehto@Kennon.com |
Breach of warranty is a largely misunderstood area of the law. Warranty protection is something that comes into play in many consumer settings, so you should know about the full coverage of this area of the law as a consumer. Most of us think only of warranties in the terms of the 3 year/36,000 mile type of warranty that comes with a new car. Of course, the length and terms of these warranties vary between different manufacturers. However, this is only a certain kind of warranty. An express warranty is any statement or promise that the seller makes to you regarding the goods you are buying and their quality or performance. The definition, as found in the Uniform Commercial Code states that express warranties by the seller are created in one of several ways:
The seller makes an "affirmation of fact or promise" to the buyer which relates to the goods and becomes part of the basis of the bargain. In this case, there is an express warranty that the goods shall conform to the affirmation or promise. "If this item breaks down within one year, I will replace it," is a promise that you could enforce later as an express warranty. But, there are others.
A description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. An example would be that the seller promises to deliver a new television to you but delivers a used one. The designation of the set as "new" is a warranty, and you could sue the seller for damages from the breached warranty (along with the other causes of action that would arise from that sale.)
Finally, any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. This situation arises often in industrial settings where a seller shows the tentative buyer an example of what will be furnished later. The model or sample itself, if held out as what the later delivery will comprise of, is a demonstration of the warranty.
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 or she have a specific intention to make a warranty. Simply put: the following advertisement "1969 Corvette, 20,000 actual miles, first-owner selling," contains several warranties. The year of the car is warranted as 1969; if you bought this car and it turned out to be a 1968, you could sue the seller for breach of warranty, even if the seller believed the car to be a 1969. If the mileage on the odometer was incorrect and you could prove it -- say that you found out the odometer had rolled over 100,000 miles -- you could likewise sue the seller for breach of warranty and recover your damages if you proved your case. "First owner" is even a warranty.
When making any purchase, pay close attention to the statements of the seller, whether written or spoken. Those statements may give rise to warranties that you can rely upon later. If warranties such as these are made and broken, you may be able to recover your damages from the seller for Breach of Warranty.