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goods should, on average, revolve around the “middle belt of quality” in the trade. [U.C.C. § 2-314, cmt. 7 (1951).] There is room for some of the goods to fall on the lower end of the quality spectrum so long as, on average, they would pass in the trade without objection. Applying this standard normally requires some evidence of what the trade requires. If there is doubt about what the trade requires, the contract price can be a prime indicator of what level of quality the parties expect. Other relevant factors include the characteristics of similar goods that others manufacture, any standard price for the goods, and any pertinent government regulations. [U.C.C. § 2-314, cmt. 7 (1951); Federal Signal Corp. v. Safety Factors, Inc. , 886 P.2d 172 (Wash. 1994); 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).] Examples : (1) A farmer contracted to buy thousands of walnut trees from a distributor. Walnut trees were known to be susceptible to a disease called crown gall. Crown gall was hard to detect in its early stages. In its advanced stages, it could kill a tree or even devastate an entire orchard. On average, in any large delivery of walnut trees, roughly 1 to 10 percent of the trees would have crown gall. After the distributor delivered the ordered trees to the farmer, though, the farmer discovered that about 43 percent of the trees had crown gall. Here, the distributor breached the implied warranty of merchantability. In the industry, it was expected that some walnut trees would have crown gall. But 43 percent was well above the industry average and, hence, unreasonable. [ Adapted from Brittalia Ventures v. Stuke Nursery Co., Inc. , 153 Cal.App.4th 17 (2007).] (2) A service-station operator contracted to purchase a specified quantity of motor fuel from an oil company. Motor fuel expanded when heated, so if one purchased motor fuel at higher temperatures, she received fuel of lower density and, hence, lesser energy content. Higher-temperature fuel, then, was generally of lower value than lower-temperature fuel. The industry standard temperature was 60 degrees Fahrenheit. When the company sold the fuel to the operator, though, a significant portion of the fuel had a temperature exceeding 70 degrees Fahrenheit. Here, a court could find that the company breached the implied warranty of merchantability, in that the fuel was not of even kind or quality within the description. [ Adapted from In re Motor Fuel Temperature Sales Practices Litigation , 534 F.Supp.2d 1214 (D. Kan. 2008).] b. Fitness for the Ordinary Purposes for Which the Goods Are Used Perhaps the most important and heavily litigated requirement for merchantability is that the goods must be fit for the ordinary purposes for which those goods are used. Applying this requirement demands that (1) the specific nonmerchantable goods be identified and (2) their ordinary purpose for intended users also be identified. Thus, an ordinary intended
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