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corner stores. Of course, even under this view, the warranty would still apply as against the manufacturer. These cases appear to reflect a minority view. The majority (and better) view seems to be that the warranty applies against nonspecialized sellers (who are merchants with respect to goods of the kind), even when the product is in a sealed container. The minority view lacks support in the UCC’s express language. [ See 2 Hawkland UCC Series § 2-314:2, Westlaw (database updated June 2021).] 2. Serving Food or Drink to Be Consumed Either on or off the Premises For purposes of the implied warranty of merchantability, the term sale includes a transaction in which a merchant serves, in exchange for value, food or drink for consumption on or off the premises. Arguably, this rule also covers instances in which a store or restaurant provides complimentary samples to induce purchases, or perhaps when a caterer serves food to guests at an event. Also, courts have extended this warranty to encompass containers and utensils provided alongside the food and drink. [U.C.C. § 2-314(1) (1951); 2 Hawkland UCC Series § 2- 314:2, Westlaw (database updated June 2021).] 3. Requirements for Merchantability Merchantable does not mean perfect. Indeed, the essence of the implied warranty of merchantability is that the goods should boast at least average quality for goods of the kind. More particularly, § 2-314 sets forth six requirements for the goods to be merchantable. Namely, the goods must: under the contract description, pass without objection in the trade; if the goods are fungible, be of average, fair quality within the description; be fit for the ordinary purposes for which goods of the kind are used; run of even kind, quantity, and quality among all units involved and within each unit, with any variations that the agreement permits; be adequately labeled, packaged, and contained as the agreement requires; and conform to any promises or affirmations of fact on the label or container.
[U.C.C. § 2-314(2) (1951); Federal Signal Corp. v. Safety Factors, Inc. , 886 P.2d 172 (Wash. 1994); 2 Hawkland UCC Series § 2-314:1, Westlaw (database updated June 2021).]
a. Passing without Objection in the Trade under the Contract Description and Fungible Goods Being of Average, Fair Quality within the Description The requirement that goods pass without objection in the trade under the contract description should be read together with the distinct, but related, requirement that fungible goods be of average, fair quality within the description. These requirements mean that the
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