Nebraska Uniform Commercial Code 2-313
- Uniform Commercial Code
Express warranties by affirmation, promise, description, sample.
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
- Laws 1963, c. 544, Art. II, § 2-313, p. 1722.
1. Express warranty
2. Implied warranty
3. Breach of warranty
1. Express warranty
Pursuant to this section, in order to create an express warranty, the seller must make an affirmation of fact or promise to the buyer which relates to the goods and becomes part of the basis of the bargain. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000).
The existence and scope of an express warranty under the UCC are ordinarily questions to be determined by the trier of fact. Since an express warranty must have been made part of the basis of the bargain, it is essential that the plaintiff prove reliance upon the warranty. The breach of an express warranty is established by showing that the goods to which it applies do not conform to the terms of the warranty. Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 55 (1990).
An express warranty must have been made a part of the basis of the bargain. In order to recover for breach of an express warranty, a buyer must prove there was reliance upon the warranty. Wendt v. Beardmore Suburban Chevrolet, 219 Neb. 775, 366 N.W.2d 424 (1985).
A warranty is express under this section when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it is intended that the buyer shall rely in making the purchase. Mennonite Deaconess Home & Hosp. v. Gates Eng'g Co., 219 Neb. 303, 363 N.W.2d 155 (1985).
The test for whether an express warranty is created is whether the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely states an opinion or expresses a judgment about a thing as to which they may each be expected to have an opinion and exercise judgment. Peterson v. North American Plant Breeders, 218 Neb. 258, 354 N.W.2d 625 (1984).
A description of goods which, according to the contemplation of the parties, contains certain representations, and which becomes a part of the basis of the bargain, creates an express warranty that the goods shall conform to the description and therefor also to the representations contemplated. Moore v. Puget Sound Plywood, 214 Neb. 14, 332 N.W.2d 212 (1983).
It is the general rule of law that a warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it is intended that the buyer shall rely in making the purchase. England v. Leithoff, 212 Neb. 462, 323 N.W.2d 98 (1982).
Manufacturer and lessor of defective scaffold held liable on basis of warranties made in advertising by manufacturer and adopted by lessor, which under facts in this case became basis of the bargain as a matter of law. Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973).
Where they become a part of the basis of the bargain, any affirmation of fact or promise made by seller to buyer which relates to the goods creates an express warranty that the goods shall conform to the affirmation or promise, and any description of the goods or any sample or model creates an express warranty that the goods shall conform to the description, sample or model. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973).
Express warranties may be created by affirmation, promise, description, or sample. Representations in a brochure can create an express warranty. Neville Const. Co. v. Cook Paint and Varnish Co., 671 F.2d 1107 (8th Cir. 1982).
Under facts in this case, applicability of this section was jury question. Gillette Dairy, Inc. v. Hydrotex Industries, Inc., 440 F.2d 969 (8th Cir. 1971).
A manufacturer or seller may be held liable under an advertising warranty even though he is not in privity with the purchaser. Omaha Pollution Control Corp. v. Carver-Greenfield Corp., 413 F.Supp. 1069 (D. Neb. 1976).
2. Implied warranty
Where a contract for the bailment of a chattel occurs, the contract may give rise to an implied warranty of fitness for the purpose for which the chattel was bailed. Herman v. Midland Ag Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).
3. Breach of warranty
Revocation of acceptance is not a prerequisite to a suit for breach of an express warranty. Evidence that an automobile described by a dealer-seller was in fact only the skeleton of the car with a variety of assorted parts was sufficient to sustain the trial court's finding of breach of an express warranty. Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992).
Seller's warranties that goods were free from encumbrances, and it would defend against claims of others, were breached where holder claimed storage lien which seller failed to get released. Goosic Constr. Co. v. City Nat. Bank of Crete, 196 Neb. 86, 241 N.W.2d 521 (1976).
Breach of warranty issue supported by evidence of representation that milk production would be increased by feeding seller's feed supplement in amounts as instructed, and proof of loss in production thereby, but directed verdict for defendant affirmed because purchaser failed to prove extent of damages therefrom. Shotkoski v. Standard Chemical Manuf. Co., 195 Neb. 22, 237 N.W.2d 92 (1975).
Prior Uniform Statutory Provision: Sections 12, 14, and 16, Uniform Sales Act.
Purposes of Changes:
To consolidate and systematize basic principles with the result that:
1. "Express" warranties rest on "dickered" aspects of the individual bargain, and go so clearly to the essence of that bargain that words of disclaimer in a form are repugnant to the basic dickered terms. "Implied" warranties rest so clearly on a common factual situation or set of conditions that no particular language or action is necessary to evidence them and they will arise in such a situation unless unmistakably negated.
This section reverts to the older case law insofar as the warranties of description and sample are designated "express" rather than "implied".
2. Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents. The provisions of section 2-318 on third-party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left to the case law with the intention that the policies of the Uniform Commercial Code may offer useful guidance in dealing with further cases as they arise.
3. The present section deals with affirmations of fact by the seller, descriptions of the goods, or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.
4. In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller's obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming "all warranties, express or implied" cannot reduce the seller's obligation with respect to such description and therefor cannot be given literal effect under section 2-316.
This is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish. But in determining what they have agreed upon good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation.
5. Paragraph (1)(b) makes specific some of the principles set forth above when a description of the goods is given by the seller.
A description need not be by words. Technical specifications, blueprints, and the like can afford more exact description than mere language and if made part of the basis of the bargain goods must conform with them. Past deliveries may set the description of quality, either expressly or impliedly by course of dealing. Of course, all descriptions by merchants must be read against the applicable trade usages with the general rules as to merchantability resolving any doubts.
6. The basic situation as to statements affecting the true essence of the bargain is no different when a sample or model is involved in the transaction. This section includes both a "sample" actually drawn from the bulk of goods which is the subject matter of the sale, and a "model" which is offered for inspection when the subject matter is not at hand and which has not been drawn from the bulk of the goods.
Although the underlying principles are unchanged, the facts are often ambiguous when something is shown as illustrative, rather than as a straight sample. In general, the presumption is that any sample or model just as any affirmation of fact is intended to become a basis of the bargain. But there is no escape from the question of fact. When the seller exhibits a sample purporting to be drawn from an existing bulk, good faith of course requires that the sample be fairly drawn. But in mercantile experience the mere exhibition of a "sample" does not of itself show whether it is merely intended to "suggest" or to "be" the character of the subject matter of the contract. The question is whether the seller has so acted with reference to the sample as to make him or her responsible that the whole shall have at least the values shown by it. The circumstances aid in answering this question. If the sample has been drawn from an existing bulk, it must be regarded as describing values of the goods contracted for unless it is accompanied by an unmistakable denial of such responsibility. If, on the other hand, a model of merchandise not on hand is offered, the mercantile presumption that it has become a literal description of the subject matter is not so strong, and particularly so if modification on the buyer's initiative impairs any feature of the model.
7. The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order (section 2-209).
8. Concerning affirmations of value or a seller's opinion or commendation under subsection (2), the basic question remains the same: What statements of the seller have in the circumstances and in objective judgment become part of the basis of the bargain? As indicated above, all of the statements of the seller do so unless good reason is shown to the contrary. The provisions of subsection (2) are included, however, since common experience discloses that some statements or predictions cannot fairly be viewed as entering into the bargain. Even as to false statements of value, however, the possibility is left open that a remedy may be provided by the law relating to fraud or misrepresentation.
Point 1: Section 2-316.
Point 2: Sections 1-102(3) and 2-318.
Point 3: Section 2-316(2)(b).
Point 4: Section 2-316.
Point 5: Sections 1-205(4) and 2-314.
Point 6: Section 2-316.
Point 7: Section 2-209.
Point 8: Section 1-103.
Definitional Cross References:
"Buyer". Section 2-103.
"Conforming". Section 2-106.
"Goods". Section 2-105.
"Seller". Section 2-103.