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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. 4. Affirmation of the Goods’ Value or the Seller’s Opinion or Commendation of the Goods Two types of statements cannot create an express warranty, even if they relate to the goods: (1) a mere affirmation of the goods’ value and (2) a statement claiming to be the seller’s mere opinion or commendation of the goods. These statements, often called puffery, tend to involve exaggerations or embellishments that most reasonable buyers disregard and that cannot objectively be proven true or false ( e.g. , the goods are of the “best quality”). 5. Whether an Affirmation, Promise, Description, Model, or Sample Becomes Part of the Basis of the Bargain In deciding whether a representation becomes part of the basis of the bargain, courts are divided over whether the buyer must actually rely on the representation in entering the contract.
Implied Warranty of Merchantability
Absent valid disclaimer, a seller who is a merchant with respect to goods of the kind warrants that the goods will be merchantable.
1. Requirements for Merchantability Generally, merchantable means of at least average quality for goods of the kind. More particularly, to be merchantable, 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. 2. Fitness for the Ordinary Purpose for Which the Goods Are Used The most important and litigated requirement for merchantability is probably that of fitness for the goods’ ordinary purpose (not necessarily the buyer’s particular purpose). To satisfy this
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