PRODUCTS LIABILITY—RECOVERY FOR BREACH OF WARRANTY WITHOUT A SALE BEING COMPLETED?

• Date: 01 December 1973
• Published date: 01 December 1973
• DOI: http://doi.org/10.1111/j.1744-1714.1972.tb01410.x
• Author: Max K. Holland

Case

Digests

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305

PRODUCTS LIABILITY-RECOVERY FOR BREACH

OF

WARRANTY WITHOUT A SALE BEING COMPLETED?

GILLISPIE

v.

GREAT ATLANTIC AND PACIFIC TEA COMPANY

187 S.E.2d 441 (N.C. 1972).

Plaintiff sustained personal injury to his wrist when

two

bottles of Sprite

exploded in a super market at

a

point 20-25 feet from the shelf where he had

picked up the carton of drinks and about

10

feet from the checkout counter.

Plaintiff based his claim solely upon breach of implied warranty. Plaintiff

appealed after a motion for a directed verdict was sustained in the lower court.

The court held that the previous North Carolina law that “an implied war-

ranty of fitness did not extend to a container in which the product came from

the producer” has now been extended to

a

container of the type involved here

by the Uniform Commercial Code 2-314(e). The court pointed out that the

nature of bottled drinks was such that they require a container that

is

adequate

to contain the drink without breaking

or

exploding when handled with ordi-

nary care. The court

said

“the fact that it is the container rather than the

product inside, which causes the injury does not make the injury any less

a

result of the sellers breach of warranty.”

A

second question the court dealt with was whether a sale had taken place

at the time the bottle exploded. The court reasoned that the prevailing view

“that title does not vest in the buyer in

a

self-service store until the seller has

received payment in cash” is not in line with the U.C.C. Statute 2-401

(2)

which states “A sale consist in the passing of title from the seller to the buyer

for a price” and U.C.C. Statute 2-106(

1)

stating “unless otherwise explicitly

agreed title passes to the buyer at the time and place at which the seller com-

pletes his performance with reference to physical delivery of the goods, despite

any reservation of a security interest and even though a document of title

is

to

be delivered at

a

different time or place; and in particular and despite any

reservation of a security interest by the bill of lading.”

The court held that “the time

of

payment was not determinative of the

question of when

a

sale takes place,” and if the plaintiff took possession with

intent to purchase no further act of delivery was necessary on the part of the

seller. The court further stated that should the plaintiff wish to divest himself

of title that he could do

so

by returning the carton to the shelf. The court

noted U.C.C. Statute 2-401 (4) which provides

“a

rejection or other refusal

by the buyer to receive or retain the goods whether or not justified, or a justi-

fied revocation of acceptance revest title to the goods in the seller.”

The court further held that “as long as the purchaser had the product in his

possession, intending to pay for it he has title to the product” and that the