Often cant disclaim expressed warranties disclaimer by examination language or

Often cant disclaim expressed warranties disclaimer

This preview shows page 25 - 27 out of 48 pages.

Often can’t disclaim expressed warranties. disclaimer by examination, language, or usage when defects are hidden, seller is liable industry wide custom has no effect on buyer who isn't part of that industry o Disclaimers can be dismissed if: Shocks the judges conscience to enforce disclaimer (usually when a death is involved) a big disparity of bargaining power o Negligence = Often Negligence is more attractive than warranty law to a plaintiff. Strict Liability = Defendant/seller is held liable even if they were “as careful as they could be”; most common basis for imposing product liability for personal injuries o Defendant can often escape liability if they can prove the plaintiff used the product for a purpose it was not designed for (product misuse) or became aware of a defect and used the product anyway (assumption of the risk) o society at large suffers damages for a few; better than negligence since it can be costly to prove
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o diff from negligence: plaintiff doesn’t need to prove that defect from failure to use reasonable care; manufacturer always negligent but reseller could be liable under SL but not negligence Restatement (second) of Torts = Summary of Strict Liability Elements: One who sells any product in a defective condition, unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or his property if o the seller is engaged in the business of selling such a product o it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold Consumer Product Safety Act created the Consumer Product Safety Commission (CPSC) = conducts safety research and creates safety regulations that cover thousands of products Magnuson-Moss Warranty Act = creates special warranty obligations that apply to consumer transactions privity: all parties in chain now responsible esp for personal injuries; alternative A only for immediate household members; alt B and C any person reasonably expected to use/consume statute of limitation: up to 4 years; often try to repair and lose right to sue res ipsa loquitor- the thing speaks for itself; plaintiff must prove negligent conduct on the parts of manufacturer/seller but buyer doesn’t have to prove that a warranty existed; any type of plaintiff misconduct, even carelessness can bar recovery; UCC vs CISG differences 1. CISG does not need written documentation as long as there’s some form of evidence 2. CISG Is mirror-image rule while UCC is not 3. CISG is irrevocable if it includes language or even a time for acceptance 4. CISG has no responsibility to act in good faith Cases: o Knight vs. Just Born (strict liability case) = Plaintiff eats a Hot Tamale candy that burns his mouth o Kurns vs. Railroad Friction Products = o Red Rose Transit Auth v. NA bus industry Red Rose bought bus from bus industry to use, but that bus caught on fire and damaged other buses and RR garage.
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  • Spring '08
  • BREDESON
  • Law, Government, Supreme Court of the United States, U.S Supreme court

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