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Express v. Implied Warranties

brokenness-1-656297-mUnder products liability law in Massachusetts, a consumer has the ability to pursue a variety of claims against a manufacturer, distributor, store owner, and/or any other organization that puts a defective product into the stream of commerce. Normally, a claim for products liability is also referred to as a “breach of warranty” claim under the Uniform Commercial Code. Warranties come in two flavors: express and implied.

An express warranty arises from any affirmation, fact, or promise made by the seller to the buyer that relates to the goods. Under the Uniform Commercial Code, express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise;

(b) Any 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.

(c) 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.

In order to pursue a claim for a breach of an express warranty- it is not necessary that the seller sold the product using words such as “warranty” or “guarantee.” If one of the above criteria is met, an express warranty will attach that the goods or products sold conform to that statement, model, description, or sample used as basis of the sale. By example, if buyer contracts with seller to purchase a vehicle advertised as having four wheel drive, and buyer subsequently gets into an accident due to weather conditions where he or she discovers that the car does not have four wheel drive, buyer can pursue a claim for breach of an express warranty. The seller may be responsible for the damages sustained to the buyer due to his or her express misrepresentation.

Implied warranties, by contrast, do not arise by agreement of the buyer and seller. Instead, these warranties attach to the products being sold automatically. The philosophy behind these warranties is that implied warranties are in place to protect the buyer when a good does not conform to normal commercial standards, or does not conform to the buyer’s particular purpose for purchasing the good. There are two forms of implied warranties: the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose.

Under the implied warranty of merchantability, which arises when a good is sold by a merchant, the seller is representing that the particular good is fit for the ordinary purpose in which it is to be used. Massachusetts equates a breach of the implied warranty of merchantability, that goods be fit for the ordinary purposes for which such goods are used, with the sale of an unreasonably dangerous product. For example, if a product is sold that has an unreasonably high propensity to catch fire- the seller may be liable for breach of the implied warranty of merchantability because exploding goods are typically not fit for their ordinary purpose.

The implied warranty of fitness for a particular purpose is different and does not arise automatically with a sale of a good. This warranty arises when a seller has reason to know the particular reason that the buyer is purchasing the specific good, and the buyer relies on the seller’s judgment in selecting the particular product. If so, a warranty that the goods are fit for that particular purpose is created. For instance, if a person purchased a jacket with the help of a sales associate, for the specific purpose of being flame retardant, and the jacket subsequently caught fire and caused damage to the buyer- the implied warranty of fitness for a particular purpose has been breached. The seller would be liable for the consequential damages that flow from the injury.

If you believe you have a products liability case, our office can help you pursue your claim.  To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.  For more information you can also visit the firm website.