1. Future performance exception
2. Section not applicable
3. Miscellaneous
1. Future performance exception
Pursuant to subsection (2) of this section, in order to constitute a future performance warranty, the terms of the warranty must unambiguously indicate that the manufacturer is warranting the future performance of the good for a specified period of time. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
Pursuant to subsection (2) of this section, the determination of a discovery date is essentially an inquiry into all of the facts and circumstances facing the buyer; thus, a court should examine all relevant evidence that bears on the buyer's discovery. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
Pursuant to subsection (2) of this section, the mere existence of "repair or replace" language in a warranty will not disturb a finding that the warranty extends to future performance. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
Pursuant to subsection (2) of this section, when a warranty extends to future performance, the statute of limitations is tolled and the cause of action does not begin to accrue until the breach of that warranty is or should have been discovered. The discovery analysis should focus on the buyer's knowledge of the nature and extent of the problem(s) with the goods. It is only when a buyer discovers, or should have discovered, facts sufficient to doubt the overall quality of the goods that subsection (2) is satisfied and the statute of limitations begins to run. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
The future performance exception contained in subsection (2) of this section applies only to an express warranty and not to an implied warranty. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
In order to meet the exception in subsection (2) of this section based on a warranty of future performance, the warranty must be an express rather than an implied warranty and the warranty must explicitly extend to future performance. A warranty to repair or replace, without more, is not an explicit warranty of future performance and will not extend the commencement of the 4-year statute of limitations set forth in subsection (1) of this section. Nebraska Popcorn, Inc. v. Wing, 258 Neb. 60, 602 N.W.2d 18 (1999).
The future performance exception of this section applies only to express warranties and does not apply to implied warranties. Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992).
An action for breach of warranty in the sale of goods must be commenced within four years of tender of delivery. The failure to discover the breach prevents the running of the statute only when the warranty explicitly extends to future performance, and an implied warranty cannot explicitly extend to future performance. Allan v. Massey-Ferguson, Inc., 221 Neb. 528, 378 N.W.2d 664 (1985).
When an express warranty is created by operation of section 2-313(1)(b) so that certain contemplations of the parties are contained in the representation such that those representations constitute a part of the description of the goods and therefor become a part of the basis of the bargain and an express warranty is created thereby, such express warranty will necessarily extend to future performance if the representations relate to such, and discovery of a breach relating thereto must await the time of such performance; in such a situation, the cause will accrue when the breach is or should have been discovered, and not upon tender of delivery. Moore v. Puget Sound Plywood, 214 Neb. 14, 332 N.W.2d 212 (1983).
An action for breach of warranty in the sale of goods must be commenced within four years of tender of delivery. Failure to discover the breach prevents the running of the statute only when the warranty explicitly extends to future performance. Grand Island School Dist. No. 2 v. Celotex Corp, 203 Neb. 559, 279 N.W.2d 603 (1979).
2. Section not applicable
The period of limitations contained in this section does not apply to sales indemnity actions. Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 55 (1990).
This section does not apply where a party is seeking indemnification. City of Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 444 N.W.2d 305 (1989).
3. Miscellaneous
Subsection (1) of this section prohibits the parties, at least by original agreement, from extending the statute of limitations. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
The limitations period was designed to be relatively short to serve as a point of finality for businesses after which they could destroy records without the fear of subsequent suits. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
The statute of limitations accrues upon tender, unless the warranty extends to future performance. There is no exception for new warranties extended postsale, and the creation of such an exception is not a matter for this court. Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).
When a party brings a suit which is characterized as a suit in tort alleging negligence in the performance of a contract, the applicable statute of limitations is that which is applied to actions in tort. Thomas v. Countryside of Hastings, 246 Neb. 907, 524 N.W.2d 311 (1994).
A breach of warranty alleging only economic loss is governed solely by the U.C.C. statute of limitations found in this section. Gillette Dairy, Inc. v. Mallard Mfg. Corp., 707 F.2d 351 (8th Cir. 1983).