Express Warranties and Warranties Given by Remote Sellers

• Author: autor
• Pages: 89-101

89

Chapter 7. Express Warranties and Warranties Given by Remote

Sellers

7.1. Creation of Express Warranties. In contrast to the implied warranties, which arise

automatically by operation of law when the required elements set forth in UCC § 2-314

(merchantability) or § 2-315 (fitness for a particular purpose) exist, an express warranty is

created by the seller. Both merchant and non-merchant sellers can create an express warranty.

The following chart summarizes how a seller can create an express warranty under § 2-313:

Any (i.e., oral, written, conduct)

- affirmation of fact or

- promise

made by seller to buyer

relating to goods

Creates a warranty: goods

shall conform to the

affirmation or promise

which becomes part of

the basis of the bargain

Any description of the goods (see

comment 5 for “description” –

needs not be by words)

Creates a warranty: goods

shall conform to the

description

Any sample or model

Creates a warranty: goods

shall conform to the

sample or model

7.1.1 UCC § 2-313(2) notes that a seller does not need to use formal words such as

“warrant” or “guarantee” to give rise to an express warranty, nor is the seller required to

have specific intent to make a warranty. In other words, if you advertise your car for sale

in the classified ads with the description “2012 Honda Fit; single owner,” you are making

a warranty whether you intend to or not.

7.1.2. UCC § 2-313(2) provides that “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.” In other words, affirmations of fact give rise to a warranty,

whereas a mere affirmation of the value or a seller’s opinion does not. It is not always

easy to distinguish between the two.