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hypoglycemia, which the veterinarian would have detected had he examined the puppy properly. Within 11 days after the buyer took delivery of the puppy, the puppy fell ill and died due to the hypoglycemia. Here, there is no implied warranty concerning the hypoglycemia. The contract afforded the buyer ample opportunity to have the puppy examined by a qualified veterinarian. The veterinarian, acting here as the buyer’s agent, should have discovered the hypoglycemia. [ Adapted from Lipnick v. Reisinger , 859 N.E.2d 600 (Ohio Ct. App. 2006).] Compare : A buyer sought to purchase an airplane from a seller. The seller repeatedly assured the buyer that the plane was airworthy. Even so, the buyer wanted to have a qualified mechanic conduct a precontract inspection. To that end, the seller left the plane with a mechanic of the buyer’s choosing over the weekend. The mechanic promised to perform a full inspection. When the mechanic returned the plane, he claimed to have done just that and found the plane airworthy, although in truth, he performed only a partial inspection. Shortly after the buyer took delivery of the plane, an annual inspection revealed numerous, serious defects rendering the plane unsafe to fly. Here, the buyer’s inspection does not preclude any implied warranties. The buyer relied on the seller’s assurances of airworthiness in buying the plane, and the buyer could not perceive or appreciate the defects due to the mechanic’s halfhearted inspection. [ See Ram Head Outfitters, Ltd. v. Mecham , No. CV 09–1382–PHX–MHM, 2011 WL 1429623 (D. Ariz. Apr. 14, 2011).] a. Buyer’s Refusal to Examine the Goods For the buyer to refuse to examine the goods, it is not sufficient merely that the buyer fails to examine the goods although the goods are made available for examination. Rather, the seller must demand that the buyer examine the goods, and the buyer must refuse this demand. [U.C.C. § 2-315, cmt. 8 (1951).]
6. Excluding or Modifying Implied Warranties by Course of Dealing, Course of Performance, or Usage of Trade
Notwithstanding the rules discussed above, the implied warranties of merchantability and fitness for a particular purpose can both be excluded or modified by course of dealing, course of performance, or usage of trade. Though this rule appears in the very text of the UCC, courts seem reluctant to apply it and find that an implied warranty actually was excluded or modified by course of dealing, course of performance, or usage of trade. Even so, both implied warranties are normally excluded if the buyer furnishes the seller with detailed specifications for the goods. Here, the buyer does not normally rely on the seller, precluding any implied warranty of fitness. Also, here, the seller expressly warrants that the goods will conform to the specifications, which usually displaces the implied warranty of merchantability.
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