Misplaced Pages

The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. You may improve this article, discuss the issue on the talk page, or create a new article, as appropriate. (December 2016) (Learn how and when to remove this message)

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. Find sources: "Implied warranty" – news · newspapers · books · scholar · JSTOR (December 2016) (Learn how and when to remove this message)

Contract law
Formation
Capacity Offer and acceptance Meeting of the minds Abstraction principle Posting rule Mirror image rule Invitation to treat Firm offer Consideration Implication-in-fact Collateral contract
Defences
Misrepresentation Mistake Threats and unequal bargaining power Illegality and public policy Unconscionability Culpa in contrahendo Force majeure Frustration of purpose Impossibility Impracticability Hardship Set-off Illusory promise Statute of frauds Non est factum Unclean hands Accord and satisfaction Exculpatory clause
Interpretation
Parol evidence Contract of adhesion Integration clause Contra proferentem UNIDROIT Principles
Dispute resolution
Choice of law clause Forum selection clause Hague Choice of Court Convention Arbitration New York Convention UNCITRAL Model Law Mediation Singapore Mediation Convention Enforcement of foreign judgments Hague Judgments Convention
Rights of third parties
Privity of contract Assignment Delegation Novation Third-party beneficiary
Breach of contract
Anticipatory repudiation Cover Exclusion clause Efficient breach Deviation Fundamental breach
Remedies
Specific performance Money damages Liquidated, stipulated, or penal damages Rescission
Quasi-contractual obligations
Promissory estoppel Quantum meruit Unjust enrichment Restitution Negotiorum gestio
Duties of parties
Duty of honest contractual performance (or doctrine of abuse of rights) Duty of good faith (also implied covenant of good faith and fair dealing or duty to negotiate in good faith) Contract A and Contract B in Canadian contract law
Related areas of law
Conflict of laws Commercial law
By jurisdiction
Australia Canada China (mainland) Ireland India Saudi Arabia United Kingdom England and Wales Scotland United States
Other law areas
Tort law Property law Wills, trusts, and estates Criminal law Evidence
Notes
1 Specific to common law jurisdictions 2 Specific to civil and mixed law jurisdictions 3 Historically restricted in common law jurisdictions but generally accepted elsewhere; availability varies between contemporary common law jurisdictions 4 Specific to the German Bürgerliches Gesetzbuch and other civil codes based on the pandectist tradition 5 Explicitly rejected by the UNIDROIT Principles of International Commercial Contracts 6 Specific to Canadian contract law both in Québec and in the country's common law provinces 7 Specific to civil law jurisdictions, the American Uniform Commercial Code, and Canadian jurisprudence in both Québec and the common law provinces pertaining to contractual and pre-contractual negotiation
v t e

In common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products or real property, due to the circumstances of the sale. These assurances are characterized as warranties regardless of whether the seller has expressly promised them orally or in writing. They include an implied warranty of fitness for a particular purpose, an implied warranty of merchantability for products, implied warranty of workmanlike quality for services, and an implied warranty of habitability for a home.

The warranty of merchantability is implied, unless expressly disclaimed by name, or the sale is identified with the phrase "as is" or "with all faults". To be "merchantable", the goods must reasonably conform to an ordinary buyer's expectations, i.e., they are what they say they are. For example, a fruit that looks and smells good but has hidden defects would violate the implied warranty of merchantability if its quality does not meet the standards for such fruit "as passes ordinarily in the trade". In Massachusetts consumer protection law, it is illegal to disclaim this warranty on household goods sold to consumers.

The warranty of fitness for a particular purpose is implied when a buyer relies upon the seller to select the goods to fit a specific request. For example, this warranty is violated when a buyer asks a mechanic to provide snow tires and receives tires that are unsafe to use in snow. This implied warranty can also be expressly disclaimed by name, thereby shifting the risk of unfitness back to the buyer.

Another implied warranty is the warranty of title, which implies that the seller of goods has the right to sell them (e.g., they are not stolen, or patent infringements, or already sold to someone else). Theoretically, this saves a buyer from having to "pay twice" for a product, if it is confiscated by the rightful owner, but only if the seller can be found and makes restitution.

Fitness for a particular purpose

An implied warranty of fitness for a particular purpose occurs if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer. The seller then guarantees that the item is fit for that particular purpose.

International sales law

In international sales law, the obligation is found in Article 35(2)(b) of the United Nations Convention on Contracts for the International Sale of Goods.

Australia

In Australia, the obligation is in section 55 of Schedule 2 ("The Australian Consumer Law") of the Competition and Consumer Act 2010 (Cth) for consumers. The Sale of Goods Acts in each state also implies the warranty and is not limited to consumer contracts.

United States

In the United States, the requirement for an implied warranty of fitness for a particular purpose (sometimes shortened to warranty of fitness) is found in UCC § 2-315 . Absent an exclusion or modification pursuant to UCC § 2-316 , the warranty applies to transactions for goods where the buyer is relying on the seller's guidance or expertise to select "suitable goods" that meet that buyer's particular purpose or requirements.

Merchantability

An implied warranty of merchantability is a warranty implied by law that goods are reasonably fit for the general purpose for which they are sold.

International sales law

In international sales law, merchantability forms part of the ordinary purpose of the goods. According to Article 35(2)(a) of the United Nations Convention on Contracts for the International Sale of Goods, a seller must provide goods fit for their ordinary purpose.

Australia

In Australia, the obligation is in section 54 of Schedule 2 ("The Australian Consumer Law") of the Competition and Consumer Act 2010 (Cth). Each State and Territory now applies the Australian Consumer Law (ACL) as the law of the state. That has created a uniform consumer protection law across the entire country.

United Kingdom

The Sale of Goods Act 1979 states that in a contract for the sale of goods it is an implied condition that the goods supplied are of merchantable quality. The implied condition is excluded if any defects are drawn to the buyer's attention before the contract is concluded or if the buyer examines the goods before the contract is concluded and finds, or ought to have found, a defect.

United States

In the United States, the requirement for an implied warranty of merchantability is found in UCC § 2-314 . The warranty applies to merchants, as defined by UCC § 2-104(1) , as opposed to casual sellers.

As prescribed by UCC § 2-314(2) , goods are merchantable if they meet the following conditions:

1. The goods must conform (pass without objection) to the standards of the trade as applicable to the contract for sale.
2. If fungible, the goods must be of average quality within the description.
3. The goods must be fit for the ordinary purposes for which such goods are used even if the buyer ordered them for another use.
4. The goods must be uniform as to quality and quantity within the tolerances as might be specified in the sales contract.
5. The goods must be contained, packaged, and labeled per the contract for sale.
6. The goods must conform to the promise or affirmation of fact made on the container or label if any even if not so specified by the contract for sale.

If the merchandise is sold with an express "guarantee," the terms of the implied warranty of merchantability fills the gaps left by that guarantee. If the terms of the express guarantee are not specified, they will be considered to be the terms of the implied warranty of merchantability. The UCC allows sellers to disclaim the implied warranty of merchantability, provided the disclaimer is made conspicuously and the disclaimer explicitly uses the term "merchantability" in the disclaimer. UCC § 2-316(2) Some states, however, have implemented the UCC so that it cannot be disclaimed.

Habitability

An implied warranty of habitability, generally, is a warranty implied by law (in some states) that by leasing or buying a residential property, the lessor or seller is promising that the property is suitable to be lived in. The doctrine is intended as a protection for tenants in a less advantageous bargaining position than the landlord. The warranty of habitability can be breached if there is no heat, hot water, or other essential services. Safety issues like no smoke alarm or other fire code issues can also be considered to make a dwelling uninhabitable. In some cases, courts have ruled that the warranty also covers cracked walls, peeling paint, and leaks. If the municipality in which the property is located prohibits habitation without a certificate of occupancy, but has not issued such a certificate with respect to the property, the unlawfulness of that habitation renders the property uninhabitable as a matter of law. The breach of the implied warranty of habitability can be used to legally break a lease. If the factors have been created or are controllable by the landlord and he or she has not fixed them despite ample written notification, this situation can also be considered constructive eviction, which allows the tenant to break the lease, and may also allow the tenant to sue for damages in some jurisdictions.

Disclaimer

In some jurisdictions, an implied warranty in a sales contract can be expressly disclaimed by the use of specific language such as the words "as is" or "with all faults".

United States

In the United States, a disclaimer must be conspicuous in the contract, such as in a different kind of print or font that makes it stand out. On the other hand, express warranty, or any affirmation of fact or promise to the buyer or description of the good, oral or written, can be negated or limited only if such disclaimers are reasonable. UCC § 2-316(1)

Some jurisdictions, however, limit the ability of sellers or manufacturers to disclaim the implied warranty of merchantability or fitness, such as Massachusetts. (Massachusetts General Laws, Chapter 106: Section 2-316A). Furthermore, the warranty of habitability generally cannot be disclaimed.

Contractual language can also limit the remedies available for breach of an implied warranty such as by capping recoverable damages or limiting the legal remedy to a replacement of a defective item. However, such a term can be found to be unconscionable. For example, if a defective product causes a personal injury, a contractual provision limiting recovery in such a case will be deemed prima facie unconscionable. UCC § 2-719(3)

References

1. ^ Primack MA. (2009). Representations, Warranties and Covenants: Back to the Basics in Contracts. National Law Review.
2. "Difference between a Guarantee and Warranty". Archived from the original on November 19, 2016. Retrieved December 5, 2016.
3. Ferara LN, Philips J, Runnicles J. (2007). Some Differences in Law and Practice Between U.K. and U.S. Stock Purchase Agreements Archived 2013-05-14 at the Wayback Machine. Jones Day Publications.
4. s14 of the Sale of Goods Act 1895 (WA), s19 of the Goods Act 1958 (Vic), s19 of the Sale of Goods Act 1923 (NSW)
5. ^ UCC § 2-315
6. ^ UCC § 2-316
7. Sale of Goods Act 1979, sect. 14(2)
8. ^ UCC § 2-314
9. UCC § 2-104
10. ^ Bolander, Donald O. (1990). The New Webster's Library of Practical Information: Family Legal Guide. Lexicon Publications. p. 45. ISBN 0-7172-4500-4.
11. Sprankling, John G. (2021). Property : a contemporary approach. Raymond R. Coletta (Fifth ed.). St. Paul, MN. ISBN 978-1-68467-717-7. OCLC 1225976169.{{cite book}}: CS1 maint: location missing publisher (link)
12. Dutenhaver, Katheryn M. (1978). "Non-Waiver of the Implied Warranty of Habitability in Residential Leases". Loyola University of Chicago Law Journal. 10: 41. Retrieved 15 December 2017.
13. Powell, Frona M. (1989). "Disclaimers of Implied Warranty in the Sale of New Homes". Villanova Law Review. 34: 1132–1153. Retrieved 15 December 2017.
14. UCC § 2-719

External links

• The GNU Project's General Public License, a prominent free software license, includes the disclaimer: "Except when otherwise stated in writing the copyright holders and/or other parties provide the program 'as is' without warranty of any kind, expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose."

• Contract law