Sales and Leases | 178
1. Express Warranty by Affirmation of Fact or Promise An affirmation of fact or promise from the seller to the buyer creates an express warranty if (1) it relates to the goods and (2) becomes part of the basis for the bargain. That warranty, in turn, is that the goods will conform to the affirmation or promise. [U.C.C. § 2-313(1)(a), (2) (1951).]
a. Whether an Affirmation of Fact or Promise Relates to the Goods Broadly speaking, a statement relates to the goods if it concerns the goods’ type,
description, or quality. On the other hand, collateral promises to take certain steps, such as to install or repair the goods or to deliver them at a certain time or place, do not relate to the goods and, thus, are not subject to the rules on express warranties. In determining whether the seller has made an affirmation or promise relating to the goods, one must interpret the seller’s statement in light of the relevant context. Context includes any pertinent trade usages and standards as to merchantability and what would pass without objection in the trade under the relevant description. [2 Hawkland UCC Series § 2-313:2, Westlaw (database updated June 2021); Kolarik v. Corey Int’l Corp. , 721 N.W.2d 159 (Iowa 2006).] Examples : (1) A buyer contracted to purchase two emus (large, flightless Australian birds resembling ostriches) from a dealer. The dealer told the buyer that the emus would be a ”proven breeder pair”— i.e. , the buyer could mate the two emus to produce offspring. Shortly after taking delivery of the emus, though, the buyer discovered that both emus were males, making it impossible to breed them. The two male emus were worth far less, as a pair, than a proven breeder pair would have been. The distributor’s statement about the two emus being a “proven breeder pair” was an affirmation of fact. That statement related to the goods, because it concerned the emus’ quality, namely, their fitness for breeding. And because the buyer reasonably relied on the statement in buying the emus, and the distributor knew it, the statement was part of the bargain’s basis and, therefore, created an express warranty. [ See Smith v. Penbridge Assoc’s, Inc. , 655 A.2d 1015 (Pa. Super. Ct. 1995).] (2) A pig farmer contracted to buy feed from a distributor. In the underlying negotiations, the distributor’s sales representative assured the farmer that only “quality corn” would appear in the feed. By relevant custom and usage of trade, the term “quality corn” referenced corn that conformed to widely adopted and well-understood quality standards. But after the farmer took delivery of the corn, he soon discovered that most of the feed consisted of substandard corn. Due to the corn’s subpar quality, many of the farmer’s pigs fell ill and died. Here, the representative’s statement about “quality corn” created an
Made with FlippingBook - Online Brochure Maker