warranty

A promise that a proposition of fact is true. The Fred Smartley, Jr., C.A.Va., 108 F.2d 603, 606.

An assurance by one party to agreement of existence of fact upon which other party may rely. It is intended precisely to relieve promisee of any duty to ascertain facts for himself, and amounts to promise to indemnify promisee for any loss if the fact warranted proves untrue. Paccon, Inc. v. U.S., 399 F.2d 162, 166, 185 Ct.Cl. 24.

A promise that certain facts are truly as they are represented to be and that they will remain so, subject to any specified limitations. In certain circumstances a warranty will be presumed, known as an "implied" warranty.

Commercial Transactions

An assurance or guaranty, either express in the form of a statement by a seller of goods, or implied by law, having reference to and ensuring the character, quality, or fitness of purpose of the goods. A warranty is a statement or representation made by seller of goods, contemporaneously with and as a part of contract of sale, though collateral to express object of sale, having reference to character, quality, fitness, or title of goods, and by which seller promises or undertakes to insure that certain facts are or shall be as he then represents them. Vasco Trucking, Inc. v. Parkhill Truck Co., 6 Ill.App.3d 572, 286 N.E.2d 383, 386.

A promise or agreement by seller that article sold has certain qualities or that seller has good title thereto. A statement of fact respecting the quality or character of goods sold, made by the seller to induce the sale, and relied on by the buyer.

See also Magnuson-Moss Warranty Act

- privity

- promissory warranty

- special warranty.

@ express warranty

A promise, ancillary to an underlying sales agreement, which is included in the written or oral terms of the sales agreement under which the promisor assures the quality, description, or performance of the goods.

(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.

+ express warranty

An agreement expressed in a policy, whereby the assured stipulates that certain facts relating to the risk are or shall be true, or certain acts relating to the same subject have been or shall be done.

@

U.C.C. No. 2-313.

A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or in the event of any sample or model, that the whole of the goods conforms to such sample or model. It is not necessary to the creation of an express warranty that formal words such as "warrant" or "guarantee" be used, but if such words are used then an express warranty is created. An affirmation merely of the value of the goods or a statement purporting to be merely an opinion or commendation of the goods does not create a warranty. Statements or representations such as expressions of general policy concerning customer satisfaction which are not subject to any limitation do not create an express warranty. Calif.Civil Code, No. 1791.2.

See also written warranty.

@ extended service warranty

Type of additional warranty sold with purchase of appliances, motor vehicles, and other consumer goods to cover repair costs not otherwise covered by manufacturer's standard warranty.

Also known as an extended service contract/extended warranty, such either extends the coverage period or extends the range of potential defects covered beyond the protection furnished in the contract of sale. Continental Insurance v. Page Engineering, Wyo., 783 P.2d 641.

@ extended warranty

An additional warranty often sold with the purchase of consumer goods (such as appliances and motor vehicles) to cover repair costs not otherwise covered by a manufacturer's standard warranty, by extending either the standard-warranty coverage period or the range of defects covered. - Also termed extended service warranty or extended service contract

@ full warranty

A warranty as to full performance covering generally both labor and materials. Under a full warranty, the warrantor must remedy the consumer product within a reasonable time and without charge after notice of a defect or malfunction. 15 U.S.C.A. No. 2304

Compare limited warranty.

@ implied warranty of merchantability or fitness for particular purpose

A promise arising by operation of law, that something which is sold shall be merchantable and fit for the purpose for which the seller has reason to know that it is required,

(a) Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale, if the seller is a merchant with respect to goods of that kind. The serving for value of food or drink to be consumed either on the premises or elsewhere is a sale for this purpose. U.C.C. No. 2-314(1).

(b) Where the seller, at the time of contracting, has reason to know any particular purpose for which the goods are required, and that the buyer is relying on the 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. U.C.C. No. 2-315.

"Implied warranty of fitness" means that when the retailer, distributor, or manufacturer has reason to know any particular purpose for which the consumer goods are required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, then there is an implied warranty that the goods shall be fit for such purpose and that when there is a sale of an assistive device sold at retail in the state, then there is an implied warranty by the retailer that the device is specifically fit for the particular needs of the buyer. Calif.Civil Code, No. 1791.1.

"Implied warranty of merchantability" or "implied warranty that goods are merchantable" means that the consumer goods meet each of the following:

(1) Pass without objection in the trade under the contract description;

(2) Are fit for the ordinary purposes for which such goods are used;

(3) Are adequately contained, packaged, and labeled;

(4) Conform to the promises or affirmations of fact made on the container or label. Calif. Civil Code, No. 1791.1.

See also fitness for particular purpose

- merchantability

- merchantable.

@ limited warranty

A written warranty which fails to meet one or more of the minimum standards for a "full" warranty. 15 U.S.C.A. No. 2303.

Warranty limited to labor or to materials for a specified time, commonly given by automobile dealers in connection with sale of used cars

Compare full warranty.

@ presentment warranties

Implied-in-law promises concerning the title and credibility of an instrument which are made by certain persons to a payor or acceptor upon presentment of the instrument for payment or acceptance.

See U.C.C. No.No. 3-417(1), 3-418, 4-207(1).

@ third party beneficiaries of warranties

See privity.

@ transfer warranties

With respect to instruments, implied-in-law promises concerning title to, and credibility of, an instrument which a transferor of the instrument for consideration gives her transferee and, if the transfer is by indorsement, to remote transferees. U.C.C. No.No. 3-417(2) & 4-207(2).

A transferee of a document of title also makes transfer warranties, upon transferring a document for value, to her immediate transferee.

See U.C.C. No. 7-507

@ warranty of title

In a sale of goods an implied promise exists that the seller owns the item offered for sale.

(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that

(a) the title conveyed shall be good, and its transfer rightful; and

(b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.

(2) A warranty under subsection (1) will be excluded or modified only by specified language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.

(3) Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications. U.C.C. No. 2-312

@ written warranty

Any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified period of time, or any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet with the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such 15 U.S.C.A. No. 2301.

See also express warranty.

@

Insurance

A warranty in the law of insurance consists of a statement by insured upon the literal truth of which the validity of the contract depends. Statement, made in insurance contract by insured, which is susceptible of no construction other than that parties mutually intended that policy should not be binding, unless such statement be literally true. Brotherhood of Railroad Trainmen v. Wood, Tex.Civ.App., 79 S.W.2d 665, 668.

A statement, description or undertaking on the part of insured, appearing in the policy or in another instrument properly incorporated in the policy and relating contractually to the risk insured against. Reid v. Hardware Mut. Ins. Co. of Carolinas, S. C., 252 S.C. 339, 166 S.E.2d 317, 321.

@ affirmative warranty

In the law of insurance, warranties may be either affirmative or promissory. Affirmative warranties may be either express or implied, but they usually consist of positive representations in the policy of the existence of some fact or state of things at the time, or previous to the time, of the making of the policy; they are, in general, conditions precedent, and if untrue, whether material to the risk or not, the policy does not attach, as it is not the contract of the insurer.

@ promissory warranty

In the law of insurance, a warranty which requires the performance or omission of certain things or the existence of certain facts after the beginning of the contract of insurance and during its continuance, and the breach of which will avoid the policy.

+ promissory warranty

In insurance law, a promissory warranty is an absolute undertaking by insured, contained in a policy or in an instrument properly incorporated by reference, that certain facts or conditions pertaining to the risk insured against shall continue, or shall be done or omitted. Reid v. Hardware Mut. Ins. Co. of Carolinas, 252 S.C. 339, 166 S.E.2d 317, 321

@

Generally

@ construction warranty

An undertaking or promise made by seller or building contractor of new home that such home is fit for the purpose intended; i.e. free from structural, electrical, plumbing, etc. defects. Many states have statutes which provide the purchaser with such warranty protection.

See Home Owners Warranty; also, warranty of habitability, below.

@ continuing warranty

One which applies to the whole period during which the contract is in force; e.g., an undertaking in a charter-party that a vessel shall continue to be of the same class that she was at the time the charter-party was made.

@

See also covenant of warranty (see also covenant).

Cumulation and conflict of warranties.

Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply:

(a) Exact or technical specifications displace an inconsistent sample or model or general language of description,

(b) A sample from an existing bulk displaces inconsistent general language of description,

(c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. U.C.C. No. 2-317. ;

@ general warranty

The name of a covenant of warranty inserted in deeds, by which the grantor binds himself, his heirs, etc., to "warrant and forever defend" to the grantee, his heirs, etc., the title thereby conveyed, against the lawful claims of all persons whatsoever. Where the warranty is only against the claims of persons claiming "by, through, or under" the grantor or his heirs, it is called a "special warranty."

@ implied warranty

Exists when the law derives it by implication or inference from the nature of the transaction or the relative situation or circumstances of the parties. Great Atlantic & Pacific Tea Co. v. Walker, Tex.Civ.App., 104 S.W.2d 627, 632.

See also this topic under "Commercial Transactions", above.

@ lineal warranty

In old conveyancing, the kind of warranty which existed when the heir derived title to the land warranted either from or through the ancestor who made the warranty.

+ lineal warranty

A warranty by an ancestor from whom the title did or might have come to the heir

@ personal warranty

One available in personal actions, and arising from the obligation which one has contracted to pay the whole or part of a debt due by another to a third person. Flanders v. Seelye, 105 U.S. 718, 26 L.Ed. 1217.

@ special warranty

A clause of warranty inserted in a deed of lands, by which the grantor covenants, for himself and his heirs, to "warrant and forever defend" the title to the same, to the grantee and his heirs, etc., against all persons claiming "by, through, or under" the grantor or his heirs. If the warranty is against the claims of all persons whatsoever, it is called a "general" warranty.

See also covenant

- warranty deed

+ special warranty

A covenant of "special warranty" is one the operation of which is limited to certain persons or claims. Central Life Assur. Soc. v. Impelmans, 13 Wash.2d 632, 126 P.2d 757, 763.

A "covenant to warrant" in the habendum clause is not a general but at most a "special warranty". New Orleans & N. E. R. R. v. Morrison, 203 Miss. 791, 35 So.2d 68, 70.

See also warranty

@ warranty of fitness

Warranty by seller that goods sold are suitable for special purpose of buyer.

See also implied warranty of fitness under "Commercial Transactions" (warranty)

@ warranty of habitability

Implied warranty of landlord that the leased premises are properly maintained and are fit for habitation at time of letting and will remain so during term of tenancy. Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831.

Under "implied warranty of habitability," applicable to new housing, builder-vendor warrants that he has complied with the building code of the area in which the structure is located and that the residence was built in a workmanlike manner and is suitable for habitation. Duncan v. Schuster-Graham Homes, Inc., Colo.App., 563 P.2d 976, 977.

See also habitability

@ warranty deed

Deed in which grantor warrants good, clear title. A deed which explicitly contains covenants concerning the quality of title it conveys. In some states, statutes impute warranties or covenants from the use of specific words, such as "grant." The usual covenants of title are warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances and defense of title as to all claims

Compare quitclaim deed

@