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

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 period 5 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 against 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. Thus, if the printer catches on fire while printing, it is not fit for its ordinary use. 3. See generally id. arts. 2520, 2524. 4. See, e.g. , id. arts. 2520–22, 2524, 2530–32, 2534, 2537–38, 2540–41, 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 against 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 distinction—or lack thereof—are 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 warranties 14 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 Processing, LLC 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 contract 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 expressly 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, 3499 (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. 284 LOUISIANA LAW REVIEW [Vol. 79 fitness—a common law creation—was never recognized as a stand-alone warranty in Louisiana prior to 1995. 17 By adopting the warranty of fitness as a stand-alone sales warranty, the legislature created an artificial distinction between the warranties of fitness and redhibition that Louisiana courts have been unable to rationalize. 18 If defects are redhibitory, 19 the goods will be unfit for ordinary use by default. 20 Accordingly, the warranty of fitness for ordinary use has no independent meaning in Louisiana law of sales. 21 Courts have reached different conclusions as to whether a buyer who alleges that a product has a redhibitory defect can also argue that the defect renders the product unfit for its ordinary use. 22 Because courts differ on this point, similarly situated parties throughout the state remain subject to different rights and obligations. 23 The time has come for Louisiana to rectify its mistakes of the past and undo what never should have been done. This Comment revisits a problem that was identified over a quarter-century ago 24 and calls for the repeal of the warranty of fitness for ordinary use as a separate warranty in Louisiana. 25 Part I provides an overview and brief history of the warranty of fitness. It surveys the legislative and jurisprudential history of the warranties of fitness and redhibition prior to 1995, analyzing Louisiana jurisprudence and introducing the correlation between the warranties. Part 17. See discussion infra Part I.D. 18. See discussion infra Part II.A.1. 19. A redhibitory defect is one that “renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect” or else “without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price.” LA. CIV. CODE art. 2520. The warranty of redhibition only covers defects that...