Chapter 33 - § 33.4 • ELEMENTS DEFINED

• Jurisdiction: Colorado

§ 33.4 • ELEMENTS DEFINED

§ 33.4.1—Express Warranty

Express warranty is defined in Colorado's version of the Uniform Commercial Code. An express warranty is created by any affirmation of fact or promise by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain.⁸ Such affirmation or promise expressly warrants that the goods shall conform to the affirmation or promise.⁹ Any description of the goods or sample or model that becomes part of the basis of the bargain creates an express warranty.¹⁰ To create an express warranty, it is not necessary for the seller to use formal words such as "warrant" or "guarantee"; nor is it necessary for the seller to have a specific intention to make a warranty.¹¹ But a seller's affirmation of the value of the goods, or a statement of opinion or endorsement by the seller, does not constitute an express warranty.¹² Express warranties extend to any person who reasonably may be expected to use, consume, or be affected by the goods.¹³

Express warranties may be oral or written.¹⁴ For example, an express warranty can be created by a sales brochure. In Anderson v. Heron Engineering Co.,¹⁵ a ski instructor was injured while riding a chair lift, when the chair in front of him slipped back along the cable, striking his chair and knocking him 30 feet to the ground. He sued the chair lift manufacturer on theories of breach of warranty and strict liability, alleging among other things that the manufacturer's sales brochure created express warranties. The Colorado Supreme Court held that for a manufacturer's sales brochure to create an express warranty, either (1) the buyer of the ski lift would have to have seen or otherwise relied on the sales brochure that contained the warranty when it purchased the chair lift, or (2) the manufacturer would have to have expressly warranted the chair lift to be "safe" through a medium other than the sales brochure.¹⁶ Put differently, the seller's representations must be "a basis of the bargain" or sale.¹⁷

§ 33.4.2—Implied Warranty of Merchantability

Of the implied warranties, the implied warranty of merchantability is most central to products liability litigation.¹⁸ The warranty of merchantability is implied by law from a sale of goods if the seller is a merchant of goods of the kind sold, and the plaintiff establishes that the product was not of merchantable quality at the time of the sale such that the seller breached the warranty.¹⁹ For goods to be considered "merchantable," they must: (1) pass without objection in the trade under the contract description; (2) in the case of fungible goods, be of fair average quality within the description; (3) be fit for the ordinary purposes for which the goods are used; (4) run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; (5) be adequately contained, packaged, and labeled as the agreement may require; or (6) conform to any promises or affirmations of fact made on the container or label.²⁰

The implied warranty of merchantability is applicable only to sellers who are merchants with respect to the kind of goods they sell.²¹ A "merchant" is defined by statute as "a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction, or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill."²² Thus, an isolated sale of a product does not make a seller a merchant.²³ The implied warranty of merchantability extends to any person who may reasonably be expected to...