1. Recovery by buyer
2. Applicability of section
1. Recovery by buyer
In order to recover under a warranty of fitness for a particular purpose, a buyer must show that (1) the seller had reason to know of the buyer's particular purpose in buying the goods, (2) the seller had reason to know that the buyer was relying on the seller's skill or judgment to furnish appropriate goods, and (3) the buyer, in fact, relied upon the seller's skill or judgment. Laird v. Scribner Coop, 237 Neb. 532, 466 N.W.2d 798 (1991).
In order for one to recover for a breach of an implied warranty of fitness under this section, the purchaser must prove that (1) the seller had reason to know of the buyer's particular purpose, (2) the seller had reason to know that the buyer was relying on the seller's skill or judgment to furnish appropriate goods, and (3) the buyer, in fact, relied upon the seller's skill or judgment. Mennonite Deaconess Home & Hosp. v. Gates Eng'g Co., 219 Neb. 303, 363 N.W.2d 155 (1985).
In order to recover on a claim of breach of an implied warranty of fitness for a particular purpose, it must be shown, among other things, that the buyer in fact relied upon the seller's skill or judgment. O'Keefe Elevator v. Second Ave. Properties, 216 Neb. 170, 343 N.W.2d 54 (1984).
One who relies upon a special custom must allege it and that other party had knowledge of it and contracted with reference thereto. Timmerman v. Hertz, 195 Neb. 237, 238 N.W.2d 220 (1976).
Sewage processing plant constructed for sale to city's pollution control corporation by private company was subject to implied warranty of merchantability and of fitness for particular purpose for which it was to be used, and city could recover for breach. Omaha Pollution Control Corp. v. Carver-Greenfield Corp., 413 F.Supp. 1069 (D. Neb. 1976).
2. Applicability of section
The implied warranty of fitness for a particular purpose is imposed upon goods when and only when they become the subject of a contract for their sale. A seller cannot impliedly warrant a product's fitness for a particular purpose when that product is not a part of the sales contract. Cobb v. Sure Crop Chem. Co., 255 Neb. 625, 587 N.W.2d 355 (1998).
Liability under this section exists only when goods do not fulfill the specific need for which they were purchased, and not when the goods in question are defective per se or fail to meet their ordinary purpose. Stones v. Sears, Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540 (1997).
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 but this is not a warranty based on an extension of section 2-315, U.C.C., but rather a common law warranty of bailment. Herman v. Midland Ag Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).
Buyer's reliance on representations was a jury question. El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358 (1978).
Instruction allowing jury to find an exclusion of implied warranty of fitness of bull for breeding by trade usage held proper. Torstenson v. Melcher, 195 Neb. 764, 241 N.W.2d 103 (1976).
Where seller had reason to know particular purpose for which goods were required and that buyer was relying on seller's skill to furnish suitable goods, there was an implied warranty unless excluded or modified under section 2-316, U.C.C. Shotkoski v. Standard Chemical Manuf. Co., 195 Neb. 22, 237 N.W.2d 92 (1975).
Where there is an implied warranty of fitness for a particular purpose hereunder, the old rule that there is no implied warranty of soundness in sale of animals is no longer in effect. Ruskamp v. Hog Builders, Inc., 192 Neb. 168, 219 N.W.2d 750 (1974).
Where seller at time of contracting has reason to know particular purpose for which goods are required and that buyer is relying on seller's skill or judgment to select or furnish suitable goods there is, unless excluded or modified, an implied warranty that the goods shall be fit for such purpose. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973).
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).
Prior Uniform Statutory Provision: Section 15(1), (4), (5), Uniform Sales Act.
Purposes of Changes:
1. Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting. Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his or her reliance on the seller's skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.
2. A "particular purpose" differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his or her business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.
A contract may of course include both a warranty of merchantability and one of fitness for a particular purpose.
The provisions of this article on the cumulation and conflict of express and implied warranties must be considered on the question of inconsistency between or among warranties. In such a case any question of fact as to which warranty was intended by the parties to apply must be resolved in favor of the warranty of fitness for particular purpose as against all other warranties except where the buyer has taken upon himself or herself the responsibility of furnishing the technical specifications.
3. In connection with the warranty of fitness for a particular purpose the provisions of this article on the allocation or division of risks are particularly applicable in any transaction in which the purpose for which the goods are to be used combines requirements both as to the quality of the goods themselves and compliance with certain laws or regulations. How the risks are divided is a question of fact to be determined, where not expressly contained in the agreement, from the circumstances of contracting, usage of trade, course of performance, and the like, matters which may constitute the "otherwise agreement" of the parties by which they may divide the risk or burden.
4. The absence from this section of the language used in the Uniform Sales Act in referring to the seller, "whether he be the grower or manufacturer or not", is not intended to impose any requirement that the seller be a grower or manufacturer. Although normally the warranty will arise only where the seller is a merchant with the appropriate "skill or judgment", it can arise as to nonmerchants where this is justified by the particular circumstances.
5. The elimination of the "patent or other trade name" exception constitutes the major extension of the warranty of fitness which has been made by the cases and continued in this article. Under the present section the existence of a patent or other trade name and the designation of the article by that name, or indeed in any other definite manner, is only one of the facts to be considered on the question of whether the buyer actually relied on the seller, but it is not of itself decisive of the issue. If the buyer himself or herself is insisting on a particular brand he or she is not relying on the seller's skill and judgment and so no warranty results. But the mere fact that the article purchased has a particular patent or trade name is not sufficient to indicate nonreliance if the article has been recommended by the seller as adequate for the buyer's purposes.
6. The specific reference forward in the present section to the following section on exclusion or modification of warranties is to call attention to the possibility of eliminating the warranty in any given case. However it must be noted that under the following section the warranty of fitness for a particular purpose must be excluded or modified by a conspicuous writing.
Point 2: Sections 2-314 and 2-317.
Point 3: Section 2-303.
Point 6: Section 2-316.
Definitional Cross References:
"Buyer". Section 2-103.
"Goods". Section 2-105.
"Seller". Section 2-103.