Justifiable Reliance by Plaintiff justifiable that misrepresentation was a

Justifiable reliance by plaintiff justifiable that

This preview shows page 17 - 21 out of 22 pages.

2. Justifiable Reliance by Plaintiff [justifiable that misrepresentation was a basis] a. “Basis of the Bargain” Any Description of goods, other than sellers opinion, becomes a basis of the bargain [it is not necessary that a plaintiff actually rely on the misrepresentation, it is enough that the plaintiff would be justified in relying in the misrepresentation] 3. Plaintiff is Damaged as a result – (cause and effect) personal injury and or economic loss III. Implied Warranty of Merchantability Imply – this warranty is imposed as a matter of law, this is part of the sales transaction A. Applies if: 1. Contract for the Sale of “goods ” and What you have purchased from the seller must be a goods=both tangible and movable property Excludes stocks, bonds, patents, copyrights (intangible) Excludes real estate (not movable) 2. Seller is a “merchant” One who earns a living by selling goods of this kind B. Merchantable = fit the ordinary purpose for which such goods are used , item not merchantable if it cant pass within the industry
Image of page 17
Serving food = sale of goods = fit to eat Two different tests for service of food 1. Foreign substance Test if what you choked on was a natural substance form food product, you will not win substance natural to food product 2. Consumer Expectation Test Consumer can reasonably expect to find fish bone in fish chowder IV. Implied Warranty of Fitness (UCC 2-315) A. Four Elements of a Cause of Action (breach of implied warranty of fitness) NEED to show all four elements of a cause of action 1. Seller has reason to know buyers particular purpose – “particular” 2. Seller has reason to know that buyer is relying on the sellers skill or judgment to furnish appropriate goods – plaintiff must prove seller had reason to know, at the time of the contract 3. Buyer must, in fact, reasonably rely upon the seller’s skill or judgment, and [actual reliance] 4. Goods sold are not, in fact, fit for the specific purpose intended by the buyer V. Warranty Disclaimers - Defendant may respond to a breach of warranty lawsuit by arguing I have effectively disclaimed this warranty A. Disclaimers of Express Warranties Rare – honor promises whether in words or through actions Disclaimer of express warranty in sale contract will be disregarded if it is inconsistent with the sellers words or actions, protects sellers against a buyers false claims of verbal warranties If there is no inconsistencies then a sales contract may provide that express warranties are limited to those in the contract
Image of page 18
B. Disclaimers of Implied Warranties 1. Disclaimers By Custom or Usage a. Parties Previous conduct b. industry wide practice [“buyer beware industry”] Ex: the cattle trade industry 2. Disclaimers By Examination “Reasonably apparent’ defects not actionable if buyer inspected the product or had the opportunity to inspect but chose not to do so “Reasonably apparent” – readily observable Ex: dog in Dempsey case congenital defect is NOT Readily apparent 3. By Language a. merchantability i. Must mention “merchantability” ii. If Written, then written disclaimer must be conspicuous [noticeable to reasonable person] different type face, seller uses larger print, disclaimer appears in a different color b. Fitness i. Must be written ii. And also conspicuous C. Unconscionability
Image of page 19
Disparity of Bargaining Power 2. Personal Injury – For Consumer goods are products that are purchased for family, personal, or household purposes
Image of page 20
Image of page 21

You've reached the end of your free preview.

Want to read all 22 pages?

  • Spring '08
  • Baker
  • Tort Law, Product liability, Carelessness

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes