A Warranty Expired: Time to Rid Louisiana of Fitness for Ordinary Use

Author:Sara Daniel
Position::J.D./D.C.L., 2019. Paul M. Hebert Law Center, Louisiana State University.
Pages:281-325
 
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A Warranty Expired: Time to Rid Louisiana of
Fitness for Ordinary Use
TABLE OF CONTENTS
Introduction .................................................................................. 281!
I. A Brief History of Louisiana Sales Warranties: From
Roman Law to the Current Confusion ......................................... 285!
A. Louisiana Sales Warranties: In General ................................. 286!
B. Legislative and Jurisprudential History: Before the
Codified Confusion ................................................................ 289!
1. Redhibition: A Civilian Institution .................................. 289!
2. The Warranty of Fitness: A Jurisprudential
Embracement ................................................................... 292!
C. Common Law Warranties of Fitness and
Merchantability: A Possible Explanation
for Article 2524 .................................................................... 296!
D. Impetus of Codification ......................................................... 299!
E. Twenty-Five Years Ago: A Prediction Foretold .................... 303!
II. The Fallout ................................................................................... 305!
A. Fitness for Ordinary Use: Codified Confusion ...................... 306!
1. Fitness for Ordinary Use and Redhibition:
The Confusing Overlap ................................................... 307!
2. The Consequence of the Overlap: Effects of
Classification ................................................................... 313!
B. Fitness for Particular Use: A Meaningful Addition
to Louisiana Law ................................................................... 319!
III. Solution: Repeal of the Warranty of Fitness for
Ordinary Use ................................................................................ 321!
Conclusion .................................................................................... 324!
INTRODUCTION
Imagine a situation in which Betty Buyer purchases a computer printer
from Suzie Seller. The first time Betty attempts to print something, the
printer bursts into flames. By selling Betty a defective printer, Suzie has
breached the warranty of redhibition, which warrants that the thing sold is
282 LOUISIANA LAW REVIEW [Vol. 79
free from hidden defects.1 And yet, as a result of this redhibitory defect,
Suzie also may have breached the warranty of fitness for ordinary use, an
entirely separate warranty that guarantees the thing sold is reasonably fit
for its ordinary use.2 The court that addresses Betty’s claim must
characterize it as either a claim for breach of the warranty of redhibition
or a claim for breach of the warranty of fitness.3 The classification of
Betty’s claim bears capital importance because the rules governing the two
warranties differ substantially in terms of remedies and time constraints
on the buyer’s action.4 For instance, if the warranty of fitness governs
Betty’s claim, she will be subjected to a ten-year prescriptive period5 and
entitled to contractual damages, assuming Suzie had no knowledge of the
defect.6 Alternatively, if redhibition governs Betty’s claim, it will be
subjected to a shorter redhibitory prescriptive period of either one or four
years,7 and her remedy will be limited to rescission of the sale.8
Although it would seem that two distinct warranties governed by
wholly different rules would apply to separate and non-overlapping
circumstances, recent judicial pronouncements show that courts have
Copyright 2018, by SARA DANIEL.
1. See LA. CIV. CODE art. 2520 (2018) (providing the warranty aga inst
redhibitory defects). Here, the printer suffers from a redhibitory defect that causes
it to catch on fire.
2. See id. art. 2524 (providing the warranty of fitness). The ordinary use of
a printer is to print. T hus, if the printer catches on fire while printing, it is not fit
for its ordinary use.
3. See g enerally id. arts. 2520, 2524.
4. See, e.g., id. arts. 252022, 2524, 253032, 2534, 253738, 254041,
2545, 2548.
5. See id. arts. 2524, 3499 (providing that a personal action is subject to a
liberative prescription of ten years unless otherwise provided by legislation).
6. See id. art. 2524 (providing that the general rules of conventional
obligations govern a buyer’s rights again st a seller for breach of warranty of
fitness); see also id. art. 1994 (providing that an obligor is liable for damages
caused by his failure to perform a conventional obligation, which may consist of
nonperformance, defective performance, or delayed performance).
7. See id. art. 2534 (providing that the action for redhibition against a good
faith seller prescribes in four years from the date of delivery or one year from the
day the defect was discovered, whichever occurs first, and that the action for
redhibition against a bad faith seller prescribes one year from the day the defect
was discovered).
8. See id. art. 2520 (providing that a buyer has the right to rescission of a
sale or to a reduction in the price depending on the nature and extent of the defect).
2018] COMMENT 283
struggled to determine where one warranty ends and the other begins.9
According to one court that found the warranties of fitness and redhibition
to be mutually exclusive, “[The warranty of fitness] applies to a situation
in which the cause of action is based, not on the defective nature of the
thing at issue, but on its fitness for ordinary use . . . .”10 Another court,
however, held exactly the opposite: “[W]e find no reason to deem the two
articles exclusive.”11 Indeed, these attempts at distinctionor lack
thereofare contradictory and fail to elucidate the circumstances under
which each warranty applies.12 The courts’ confusion is understandable,
however, because the legislative distinction between the two warranties is
largely artificial, and any separation is unnecessarily trivial.13
The differences in remedies, prescriptive periods, and overall legal
frameworks of the two warranties14 may also suggest a legislative
determination that, as a matter of policy, the breach of the warranty of
fitness is more egregious than the breach of the warranty of redhibition.
Further, because the legislature recently added the warranty of fitness,15 it
seems that perhaps this addition was the result of the legislature’s
deliberate recognition of the law’s previous failure to adequately address
fitness issues under the legal framework for redhibition. Surprisingly,
neither of these logical inferences is correct.16 Indeed, the warranty of
9. See, e.g., Mouton v. Generac Power Sys., Inc., 152 So. 3d 985 (La. Ct.
App. 2014); Sw. La. Hosp. Ass’n v. BASF Const. Chems., LLC, 947 F. Supp. 2d
661 (W.D. La. 2013); Hollybrook Cottonseed P rocessing, L LC v. Carver, Inc.,
No. 09-0750, 2010 WL 892869 (W.D. La. Mar. 11, 2010); Cunard Line Co. v.
Datrex, Inc., 926 So. 2d 109 (La. Ct. App. 2006).
10. Cunard Line Co., 926 So. 2d at 114. See also Stroderd v. Yamaha Motor
Corp., U.S.A., No. 04-3040, 2005 WL 2037419, at *3 (E.D. La. Aug. 4, 2005)
(“[A] breach of co ntract of fitness for ordinary use claim is only an independent
cause of action when an item is free from redhibitory defects.”).
11. Justiss Oil Co., Inc. v. T3 Energy Servs., Inc., No. 1:07-cv-01745, 2011
WL 539135, at *6 (W.D. La. Feb. 7, 2011). The court expr essly invited the
Louisiana Supreme Court to provide clarification on the issue: “Without
Louisiana Supreme Court clarification on this issue, we are not reluctant to side
with the overwhelming majority of Louisiana appellate courts.” Id. at *5. See also
Sw. La. Hosp. Ass’n, 947 F. Supp. 2d at 690.
12. See, e.g., Sw. La. Hosp. Ass’n, 947 F. Supp. 2d at 690; Cunard Line Co.,
926 So. 2d at 114.
13. See discussion infra Part II.A.1.
14. See generally LA. CIV. CODE arts. 1994, 2520, 2524, 2534, 349 9 (2018);
see also discussion infra Part II.A.2.
15. See generally id. art. 2524 (eff. Jan. 1, 1995).
16. See discussion infra Part I.D.

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