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requirement, the goods must meet the ordinary, intended user’s objectively reasonable expectations (but not any subjective or idiosyncratic expectations). Relevant factors include whether the goods: are as safe as the ordinary user would reasonably expect, when used for their ordinary purposes; conform to industry or government standards; are marketable or usable; and are of average quality. 3. Time of Breach of Implied Warranty of Merchantability The implied warranty of merchantability is breached, if at all, at the time of sale—that is, the time of tender of delivery. 4. Plaintiff’s Conduct as a Limitation on Recovery The plaintiff’s conduct can lead to a finding that whatever made the goods unmerchantable was not the actual or proximate cause of the harm, which defeats recovery for breach of the implied warranty of merchantability. Examples include the plaintiff’s: misuse of the goods, at least if unforeseeable; failure to follow suitably conspicuous and clear instructions; substantially altering the goods; or continuing to use the goods, even after the buyer knows that the goods are harmful. Implied Warranty of Fitness for a Particular Purpose The implied warranty of fitness for a particular purpose applies if, at the time of contracting, the seller has reason to know (1) any particular purpose for which the buyer requires the goods and (2) that the buyer relies on the seller’s judgment or skill to provide or select suitable goods. Unless the warranty is excluded or modified under § 2-316, there is an implied warranty that the goods will be fit for the particular purpose. For instance, the warranty might apply if a mountain climber informs an employee at a shoe store that the climber wants boots suitable for scaling snow-covered mountainsides. This warranty applies regardless of whether the seller is a merchant.
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