Contracts II

Implied Terms

See page 790.

UCC § 2-313

Express Warranties by Affirmation, Promise, Description, Sample.

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Express warranties by the seller are created as follows:

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.

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.

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.

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 have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

Implied Warranty

Implied Warranty of Merchantability

UCC § 2-314

UCC § 2-314

Implied Warranty: Merchantability; Usage of Trade.

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Unless excluded or modified ([UCC § 2-316]), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

Goods to be merchantable must be at least such as

pass without objection in the trade under the contract description; and

in the case of fungible goods, are of fair average quality within the description; and

are fit for the ordinary purposes for which such goods are used; and

run, within the variations permitted by the agreement, of even kind, quality and quantity
within each unit and among all units involved; and
are adequately contained, packaged, and labeled as the agreement may require; and

conform to the promise or affirmations of fact made on the container or label if any.

Unless excluded or modified ([UCC § 2-316]) other implied warranties may arise from course of dealing or usage of trade.

Koken.

Implied Warranty of Fitness for a Particular Purpose

UCC § 2-315

UCC § 2-315

Implied Warranty: Fitness for Particular Purpose.

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Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

Lewis.

Exclusions:

There are two ways to exclude warranties:

UCC § 2-316

UCC § 2-316

Exclusion or Modification of Warranties.

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Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence ([UCC § 2-202]) negation or limitation is inoperative to the extent that such construction is unreasonable.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
Notwithstanding subsection (2)

unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and

when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and

an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy ([UCC § 2-718] and [UCC § 2-719]).

UCC § 2-719

UCC § 2-719

Contractual Modification or Limitation of Remedy.

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Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,

the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and

resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Limit Remedy

Good Faith

Every contract carries an implied covenant of good faith and fair dealing.

Restatement Second of Contracts § 205

Restatement Second of Contracts § 205

Duty of Good Faith and Fair Dealing

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Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.

UCC § 1-304

UCC § 1-304

Obligation of Good Faith.

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Every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance and enforcement.

UCC § 1-201(b)(20)

UCC § 1-201(b)(20)

General Definitions.

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"Good faith," except as otherwise provided in Article 5, means honesty in fact and the observance of reasonable commercial standards of fair dealing.

UCC § 2-306(2)

UCC § 2-306(2)

Output, Requirements and Exclusive Dealings.

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A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.

"'[U]nder the covenant of good faith and fair dealing, a party [exercising discretion must] refrain from doing anything that will have the effect of frustrating the right of the other party to receive the fruits of the contract between them.'" This means that each party must "do nothing to destroy the rights of the other party to enjoy the fruits of the contract and [] do everything that the contract presupposes they will do to accomplish its purpose." In addition, the obligation to act in good faith and deal fairly prohibits a party from terminating its contract (or otherwise exercising its discretion) to "recapture" an opportunity that it lost upon entering the contract. . . . [T]he obligation of good faith and fair dealing requires a party exercising discretion to do so in accordance with the "reasonable expectations" of the other party.

Questar.