Class 28, Tuesday, March 14. Announcements one handout—Problem Set 5 Thursday 507-26; Problem Set 5 Friday 526-53 Today’s agenda Problem 6-1 Warranties generally Bayliner Marine Corp. v. Crow Recap. Today is a great day to learn about warranties and disclaimers of warranties. .
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one handout—Problem Set 5
Thursday 507-26; Problem Set 5
Bayliner Marine Corp. v. Crow
Who is suing whom? disclaimers of warranties.
For what kind of damages?
What is the subject matter of the transaction?
What is the legal basis for the claim?
What is the duty that P is claiming that D breached?
What is the factual basis for the claim? disclaimers of warranties.
Who won at the trial court level? This appeal?
Issue? disclaimers of warranties.
Application to facts in case?
What policies does it further/ignore?
TACOMA PROPELLER disclaimers of warranties. can calculate a suggested propeller size with reasonable success if given accurate data. As one of the largest distributors of propellers in the United States, we are committed to serving the American boater.
. . .
All boat owner's have different expectations from their boats, but it all comes down to; what the boat motor's rated RPM range is, and is your current propeller allowing the motor to achieve it's RPM range.
Disclaimer: Tacoma Propeller offers propeller size suggestion's as a free service to the public. Propeller sizing is very complex and subjective in nature. All propeller suggestion's are subject to sea trial and are offered at the sole risk to the consumer. Tacoma propeller assumes no liability for damages as to the outcome of our propeller suggestions.
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but 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.
(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promise or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
A drawing is advertised as “a genuine Picasso”; parties enter into written K that includes the following merger clause:
This writing represents the entire agreement between the parties, and the seller has made no representations or warranties, express or implied, nor has the buyer relied upon any representations in purchasing the painting.
It turns out that the drawing is not a Picasso. Buyer sues.
1. does the advertisement create an express warranty
2. does the merger clause effectively disclaim any express warranties
3. does 2-316(1) resolve the conflict between 1 & 2
4. does the parol evidence rule bar the advertisement?
5. is the advertisement admissible under the fraud or misrepresentation exception?
6. if admissible, what are the buyer’s theories for recovery?
—if K already performed (you paid and seller delivered, damages = value of Picasso drawing – value of drawing you have + other loss – loss avoided
—if K not already performed (you discover the problem during the executory period), damages = value of Picasso drawing – K price + other loss – loss avoided
Thursday 507-26; Problem Set 5