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(2) A phone company purchased cables from a manufacturer. The contract set forth detailed technical specifications, under which the cables were to have attenuation rates falling within specified parameters. After taking delivery of the cables, the phone company learned that most of the cables had attenuation levels much higher than those the contract permitted. On similar facts, a federal district court held that the specifications were a description going to the basis of the bargain. Hence, the excessive attenuation levels breached that warranty. [ See Conductores Monterrey, S.A. de C.V. v. Remee Prods. Corp. , No. 95 Civ. 7925(BSJ), 2000 WL 1448609 (S.D.N.Y. Sept. 28, 2000).] 3. Express Warranty by Sample or Model If a sample or model becomes part of the basis of the bargain, then there arises an express warranty that the goods will conform to the sample or model. A sample is taken from the bulk of goods that is the contract’s subject matter. A model is a good that the seller offers for inspection, though not taken from the bulk of goods to be sold. Here, a pivotal issue is whether, based on the seller’s acts, the buyer could reasonably believe that the sample or model represents the goods being sold. If not, then there is no express warranty. For instance, if the sample or model is simply meant to illustrate the goods, rather than to exemplify the precise goods to be purchased, an express warranty might not arise. Normally, a sample is presumed to exemplify the goods. In the case of a model, this presumption is somewhat weaker. [U.C.C. § 2-313(1)(c), cmt. 6 (1951); 2 Hawkland UCC Series § 2-313:3, Westlaw (database updated June 2021).] Example : A homeowner contracted with a builder to install rock tile on the homeowner’s porch and pool area. Before the installation work commenced, the homeowner viewed several samples of the tile and selected the one she wanted put in. The first batch of tile installed conformed perfectly to the sample. However, the next batch was a conspicuously different color from the sample and, hence, from the tile that was already installed. Here, the sample, on which the homeowner relied in selecting the tile she wanted, created an express warranty that the tile installed would conform to the sample. [ See Materials Marketing Corp. v. Spencer , 40 S.W.3d 172 (Tex. Ct. App. 2001).] Compare : A homeowner contracted to purchase windows from a designer for installation in the home. The designer displayed small-scale models of the types of windows the designer had for sale. The buyer selected one of the models, and the type of window the model represented became the subject matter of the sale. Here, the model was clearly not meant to be a full-scale representation of the windows, because it was significantly smaller than the windows it represented. But the model was meant to represent the appearance, workmanship, and
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