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1.5.3 Common Law

The UCC policy of cumulation of rights and remedies also applies to common law and equity principles except when specifically in conflict with the UCC.188 Section 1-103 provides that: “Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.”

This provision means that the buyer is free to raise tort claims, such as fraud, misrepresentation, and negligence, and equity considerations, such as mistake, failure of consideration, estoppel, and duress.189 These claims and considerations are not preempted by adoption of the UCC and can be asserted in addition to any UCC claim. Section 2-721 specifically rejects the election of remedies principle for fraud that required a buyer to elect between cancellation of the sale and recovery of damages, and allows a buyer to seek both rescission for fraud and damages for fraud or breach of warranty. However, in some jurisdictions, implied warranty claims are subsumed by the state products liability act, which creates the exclusive remedy for certain harms caused by a product.190

The Magnuson-Moss Warranty Act191 and most state lemon laws192 also specify that they do not limit the rights or remedies available to consumers under other laws, thus making it clear that common law claims are preserved. The Magnuson-Moss Warranty Act likewise provides that it does not invalidate or restrict any right or remedy of any consumer under state law.193


  • 188 {188} See Epsman v. Martin-Landers, L.L.C., 64 U.C.C. Rep. Serv. 2d 19 (E.D. Ark. 2007) (U.C.C. does not displace actions for fraud, constructive fraud, breach of contract, or UDAP violations); Mize v. Winnebago Indus., Inc., 2006 WL 355259 (N.D. Ga. Feb. 15, 2006) (buyers may plead both fraud and breach of warranty, although they may not be able to recover for both); H.C. Schmieding Produce Co. v. Cagle, 529 So. 2d 243 (Ala. 1988) (common law is supplement when U.C.C. is silent); Weidensaul v. Greenhouse Restaurant, 762 P.2d 196 (Kan. Ct. App. 1988) (common law doctrine of accord and satisfaction not “indirectly” abrogated by U.C.C. § 1-207 because section 1-103 indicates that all supplemental bodies of law continue to apply unless explicitly displaced); Watts v. Sechler, 140 S.W.3d 232, 240 n.7 (Mo. Ct. App. 2004) (common law implied warranties continue to exist even when U.C.C. also applies); Lee Sapp Leasing, Inc. v. Catholic Archbishop of Omaha, 540 N.W.2d 101 (Neb. 1995) (common law contract principles are not displaced generally by U.C.C.); Fed. Signal Corp. v. Safety Factors, Inc., 886 P.2d 172 (Wash. 1994). But cf. H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d 172 (5th Cir. 1988) (Miss. law) (general state statute of frauds is specifically displaced by U.C.C. statute of frauds in sales of goods because the two statutes are in conflict and would mandate different results); Callegari v. Blendtec, Inc., 2018 WL 5808805 (D. Utah Nov. 6, 2018) (U.C.C. warranty provisions displace common law implied and express warranty claims); Sparks v. Total Body Essential Nutrition, Inc., 27 So. 3d 489 (Ala. 2009) (U.C.C. displaces common law rule that direct seller has no liability for defects in goods purchased and then resold in manufacturer’s original sealed containers); Rector v. Karlstad Farmers Elevator, 66 U.C.C. Rep. Serv. 2d 777 (Minn. Ct. App. 2008) (U.C.C. displaces common law contract remedies for sale of defective grain); U.S. Nat’l Bank v. Boge, 814 P.2d 1082 (Or. 1991) (U.C.C. good faith obligation replaces common law duty); Miller-Rogaska, Inc. v. Bank One, Tex., 931 S.W.2d 655 (Tex. App. 1996) (U.C.C. displaces common law claim for conversion of negotiable instrument because of conflict with section 3-419).

  • 189 {189} Miles v. Raymond Corp., 612 F. Supp. 2d 913 (N.D. Ohio 2009) (plaintiff can pursue both U.C.C. and product liability claims); Bank Leumi Trust Co. v. Bally’s Park Place, Inc., 528 F. Supp. 349 (S.D.N.Y. 1981) (U.C.C. expressly preserves the common law governing mistake); Sorchaga v. Ride Auto, L.L.C., 909 N.W.2d 550 (Minn. 2018) (consumer can recover on both fraud and warranty claims as long as she does not obtain a double recovery); Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn. 1990) (tort and strict liability remedies remain available in actions by consumers); B & D Glass, Inc. v. Weather Shield Mfg., Inc., 829 P.2d 809 (Wyo. 1992) (estoppel remains available). But see Mickelsen v. Broadway Ford, Inc., 280 P.3d 176 (Idaho 2012) (concluding, with little support, that U.C.C. displaces action for fraud when dealer misrepresented scope of manufacturer’s warranty on leased vehicle); Hitachi Elec. Devices (USA), Inc. v. Platinum Technologies, Inc., 621 S.E.2d 38 (S.C. 2005) (U.C.C. displaces common law breach of contract claims, so buyer cannot recover without meeting U.C.C. notice requirements).

  • 190 {190} See, e.g., Guardavacarro v. Home Depot, 2017 WL 3393812 (D.N.J. Aug. 8, 2017) (implied warranty claim for personal injury is subsumed by products liability claim); Cole v. NIBCO, Inc., 2015 WL 2414740 (D.N.J. May 20, 2015) (New Jersey and Tennessee product liability laws displace implied warranty claims that go beyond damage to the warranted item itself); In re Ft. Totten Metrorail Cases Arising Out of the Events of June 22, 2009, 793 F. Supp. 2d 133 (D.D.C. 2011) (U.C.C. implied warranty claims and strict product liability claims against remote manufacturer are a single tort, so implied warranty claim must be dismissed); Smith v. Merial Ltd., 2011 WL 2119100 (D.N.J. May 26, 2011); Forslund v. Stryker Corp., 72 U.C.C. Rep. Serv. 2d 1088 (D. Minn. 2010) (strict product liability displaces implied warranty claims when personal injury is involved). See also Ala. Powersport Auction, L.L.C. v. Wiese, 143 So. 3d 713 (Ala. 2013) (claim under state wrongful death statute cannot be based on breach of U.C.C. warranty). But see Miller v. ALZA Corp., 759 F. Supp. 2d 929 (S.D. Ohio 2010) (product liability act abrogates common law warranty claims, but not U.C.C. warranty claims); Hitachi Constr. Mach. Co. v. Amax Coal Co., 737 N.E.2d 460 (Ind. Ct. App. 2000) (product liability statute does not displace warranty law). But cf. Montich v. Miele USA, Inc., 849 F. Supp. 2d 439, 456–457 (D.N.J. 2012) (state product liability act does not displace warranty claims for loss in value of the product itself); Atkinson v. P & G-Clairol, Inc., 813 F. Supp. 2d 1021 (N.D. Ind. 2011) (state product liability statute displaces U.C.C. implied warranty claims that sound in tort, but not those that seek cost of the product and economic loss); Rehberger v. Honeywell Int’l, Inc., 2011 WL 780681 (M.D. Tenn. Feb. 28, 2011) (U.C.C. warranty claim that seeks economic damages rather than personal injury damages is not subsumed by state product liability act); Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968, 978–980 (Del. 1980) (U.C.C. displaces strict liability claim that arises from sale of goods); Des Moines Flying Serv., Inc. v. Aerial Services Inc., 880 N.W.2d 212 (Iowa 2016) (construing statute that gives nonmanufacturing seller complete immunity from suit in manufacturing and design defect cases to apply only to product liability claims stemming from personal injury or property damage, and not to apply to implied warranty claims seeking economic loss). See generally § 12.3, infra (application of products liability law to warranty issues)

  • 191 {191} 15 U.S.C. § 2311(b)(1). See, e.g., Sorchaga v. Ride Auto, L.L.C., 893 N.W.2d 360 (Minn. Ct. App. 2017) (consumer can recover attorney fees on Magnuson-Moss claim in addition to damages on fraud or U.C.C. warranty claim), aff’d, 909 N.W.2d 550 (Minn. 2018). See generally § 1.5.1, supra.

  • 192 {192} See § 14.4.2, infra.

  • 193 {193} 15 U.S.C. § 2311(b)(1). See § 2.9.1, infra.