Unformatted text preview: Chapter 25
PRODUCT LIABILITY: WARRANTIES AND TORTS General Principles: Theories of Liability
There are five theories to protect parties from
loss caused by nonconforming goods. They are: (1) express warranty, (2) implied warranty, (3) negligence, (4) fraud, and (5) strict tort liability. Theories of product liability are not mutually exclusive. A given set of facts may give rise to liability under two or more theories.
2 Who is Liable in Product Liability?
The idea of privity of contract (only the parties
to the contract have warranty protection) has been widely rejected. The law usually allows any person harmed by an improper product to sue anyone who is in any way responsible. The buyer, user and even bystanders may become plaintiffs in an action. The seller, manufacturer, or distributor may become defendants in such actions.
Warranties may be express or implied. Both have the same effect and operate as though the
defendant had made an express guarantee. A warranty made after a sale does not require
consideration; it is regarded as a modification of the sales contract. 4 Express Warranties
Express warranties are regulated by federal
statute and the FTC. These warranties must be labeled as full or limited warranties and must conform to certain standards. Seller's Opinion or Statement of Value. 5 Express Warranties
A distinction is made between a merchant seller
and a casual seller. A merchant seller is responsible for a greater range
of warranties. Magnuson-Moss Warranty Act and Federal
Trade Commission enforce warranties. 6 Implied Warranties
A seller makes a warranty of title (that the
seller actually owns the item) unless such warranty is excluded. A warranty against encumbrances assures the buyer that the item does not have a lien against it. Warranty of fitness for a particular purpose is enforceable if the seller knew of the buyer's intended use.
7 Implied Warranties of Merchant-Seller Unless otherwise agreed, merchant sellers warrant
that the goods are free of patent, copyright or trademark infringement. A merchant seller warrants that the goods are fit for their normal use (warranty of merchantability). Particular Sales: Sale on Buyer's Specifications. Sale of Used Goods. Sale of Food or Drink. 8 Disclaimer of Warranties
Warranties may be disclaimed by
agreement provided the disclaimer is not unconscionable. To disclaim the implied warranty of merchantability, the term merchantability or language like "as is," must be used. Post-sale disclaimers have no effect on warranties that arose at the time of the sale.
9 Other Theories of Product Liability
Negligence Fraud Strict Tort Liability Without regard to whether injured party is
purchaser or bystander. Theories are not Cumulative 10 Negligence and Fraud If an injured person can show that the defendant was
negligent in the manufacture or design of a product, he may prevail in an action. Negligence also includes the failure to provide adequate instructions for use or safety warnings. A person defrauded by a manufacturer or distributor's false statements about a product can generally recover damages sustained because of the misrepresentations. 11 Strict Tort Liability A manufacturer or distributor of a defective
product is liable to anyone injured by the product buyer, user, innocent bystander. The plaintiff must show there was a defect in the product at the time it left the control of the defendant. No negligence need be established on the part of the defendant, nor is the plaintiff's contributory negligence a defense. The defendant may show that the injured party assumed a known risk.
12 Cumulative Theories
When goods are defective and cause harm or loss, the person harmed has a claim for product liability. Guarantee Strict Tort Liability Not Mutually Exclusive Fraud Express Warranty Negligence Implied Warranty 13 Warranties
Name of Warranty
Affirmation of fact or promise of performance (includes samples, models, descriptions) Given in every sale of goods by a merchant ("fit for ordinary purposes") Seller knows of buyer's reliance for a particular use (buyer is ignorant) Restriction
Must be part of the basis of the margin Disclaimer
Cannot make a disclaimer inconsistent with an express warranty (1) Must use "merchantability" or general disclaimer of "as is" or "with all faults" (2) If written, be conspicuous (1) Must be in writing (2) Must be conspicuous (3) Also disclaimed with "as is" or "with all faults" Must say "There is no warranty of title" None Implied Warranty of Merchantability Only given by merchants Implied Warranty of Fitness for a Particular Purpose Seller must have Knowledge; Buyer must rely Title Magnuson-Moss (Federal Consumer Product Warranty Law) Given in every sale Does not apply when apparent warranty is not given Must label "Full" or "Limited" Only consumer product of $15 or more 14 ...
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