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1.6.2 Cumulation of Rights Under UCC and State and Federal Consumer Legislation

The Uniform Commercial Code (UCC) does not repeal earlier consumer protection laws.171 Such statutes provide cumulative protection to buyers. Section 10-104, which specifies the previous laws repealed by the UCC, identifies only those comprehensive statutory schemes that generally governed contracts within the UCC’s scope, such as the Uniform Sales Act. Section 2-102 specifically provides that Article 2 does not “impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.”

Similarly, consumer protection laws enacted after the UCC obviously are not preempted by the preexisting UCC.172 Nor do they render the UCC inapplicable to a transaction, unless specifically so stated in that legislation. Section 1-104 [formerly U.C.C. § 1-104] establishes that “no part of [the Code] shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.”173 In rare cases, however, a federal statute may regulate a particular type of sale so extensively that a court will find that the UCC warranty provisions are preempted.174

The policy of cumulation of statutory rights is important for consumer buyers in three respects. First, it means that consumer buyers are usually protected by two or more different statutory schemes, which is significant because when one statute does not provide a claim, the other one often does. For example, in Lou Bachrodt Chevrolet, Inc. v. Savage,175 a judgment for a consumer based upon fraud and the state deceptive practices statute was affirmed even though the breach of contract judgment was reversed. The contract contained an “as is” disclaimer but the salesperson had made oral representations about the condition of the car.176 Conversely, sometimes the UCC provides a claim when the consumer protection statute does not.177

A second significance of the policy of cumulation is that the consumer buyer may be given a variety of remedies. Although the UCC provides for cancellation of the sale and damages, consumer protection statutes often provide for statutory and multiple damages and attorney fees.178 In addition, the UCC may not allow certain remedies against a remote manufacturer, but a lemon law or another state consumer protection act may.179

Third, when there is an irreconcilable conflict between the statutes, the more specific consumer protection statute usually will prevail over the more general UCC.180 Thus, in Hoffman Motors, Inc. v. Enockson,181 a case involving the sale of a tractor, a contractual warranty disclaimer fully complying with the UCC was void because it conflicted with a state statute imposing a warranty of fitness for ordinary purpose.

Occasionally courts identify an exception to the policy of cumulation for contract claims. Some courts hold that UCC warranty remedies displace the UCC remedies for breach of contract, so a buyer cannot recast a UCC warranty claim as a breach of contract or assert the two claims together based on the same breach.182

Footnotes

  • 171 {163} Cugnini v. Reynolds Cattle Co., 648 P.2d 159 (Colo. Ct. App. 1981) (U.C.C. does not supersede Colorado livestock bill of sale laws), aff’d, 687 P.2d 962 (Colo. 1984); Redfern Meats, Inc. v. Hertz Corp., 215 S.E.2d 10 (Ga. Ct. App. 1975) (Georgia statute implying warranty of merchantability in bailment of goods was not repealed by enactment of U.C.C.); AAA Parking, Inc. v. Bigger, 149 S.E.2d 255 (Ga. Ct. App. 1966) (enactment of U.C.C. did not repeal Georgia statutes holding bailee to standard of ordinary care in storing and returning car); Potter v. Tyndall, 205 S.E.2d 808 (N.C. Ct. App. 1974) (action for breach of warranty of fitness under North Carolina Fertilizer Law is not preempted by warranty of fitness provisions of U.C.C.); Hoffman Motors, Inc. v. Enockson, 240 N.W.2d 353 (N.D. 1976) (state statute implying warranty of fitness in tractor sales is not repealed by U.C.C. disclaimer provisions); Meyer v. Gen. Am. Corp., 569 P.2d 1094 (Utah 1977) (adoption of U.C.C. did not repeal Utah Fraudulent Conveyance Act). But see Taylor v. American Honda Motor Co., 555 F. Supp. 59 (M.D. Fla. 1982) (U.C.C. breach of warranty remedies displace preexisting state law); Armco, Inc. v. New Horizon Dev. Co., 331 S.E.2d 456 (Va. 1985) (Code requirement of conspicuousness supersedes pre-Code requirement of 10-point type).

  • 172 {164} See, e.g., Pet Dealers Ass’n v. Div. of Consumer Affairs, 373 A.2d 688 (N.J. Super. Ct. App. Div. 1977) (regulations promulgated under New Jersey Consumer Fraud Act governing sale of pets did not conflict with U.C.C. and are valid).

  • 173 {165} Martin v. Joseph Harris Co., 767 F.2d 296 (6th Cir. 1985) (Mich. law) (Federal Seed Act did not abrogate U.C.C.); In re Ford Motor Co. E-350 Van Products Liab. Litig., 66 U.C.C. Rep. Serv. 2d 726 (D.N.J. 2008) (U.C.C. does not preempt UDAP claims); Bailey v. S2 Yachts, Inc., 2008 WL 4820759 (C.D. Cal. Oct. 31, 2008) (Song-Beverly Act does not affect U.C.C. warranty rights except that it prevails in case of a conflict); 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 UDAP violations); Jackson v. H. Frank Olds, Inc., 382 N.E.2d 550 (Ill. App. Ct. 1978) (Illinois state deceptive practices act’s express provisions warranting used cars up to four years old did not preempt U.C.C.’s implied warranties covering used cars more than four years old sold by car dealers, because they could be construed harmoniously to provide cumulative rights and remedies); Hanson v. Funk Seeds Int’l, 373 N.W.2d 30 (S.D. 1985) (federal and state seed acts do not abrogate U.C.C. remedies for breach of warranty). See also Hitachi Constr. Mach. Co. v. Amax Coal Co., 737 N.E.2d 460 (Ind. Ct. App. 2000) (product liability statute does not displace U.C.C. warranty law).

  • 174 {166} See § 1.7, infra.

  • 175 {167} 570 So. 2d 306 (Fla. Dist. Ct. App. 1990).

  • 176 {168} See also Attaway v. Tom’s Auto Sales, Inc., 242 S.E.2d 740 (Ga. Ct. App. 1978) (buyer had claim under state deceptive practices act based on used car salesperson’s misrepresentations even though breach of warranty claims were dismissed because of “as is” disclaimers).

  • 177 {169} See, e.g., Jackson v. H. Frank Olds, Inc., 382 N.E.2d 550 (Ill. App. Ct. 1978).

  • 178 {170} 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). See generally § 11.1.1, infra; National Consumer Law Center, Unfair and Deceptive Acts and Practices (9th ed. 2016), updated at www.nclc.org/library.

  • 179 {171} See Clark v. Ford Motor Co., 612 P.2d 316 (Or. Ct. App. 1980) (buyer cannot cancel sale under U.C.C. as to manufacturer with whom he did not contract directly, but can get the equivalent relief under state Consumer Warranty Act). See generally National Consumer Law Center, Unfair and Deceptive Acts and Practices § 2.3.8 (9th ed. 2016), updated at www.nclc.org/library.

  • 180 {172} See, e.g., Mexia v. Rinker Boat Co., 95 Cal. Rptr. 3d 285, 290 (Cal. Ct. App. 2009).

  • 181 {173} 240 N.W.2d 353 (N.D. 1976).

  • 182 {174} Suhr v. Aqua Haven, L.L.C., 81 U.C.C. Rep. Serv. 2d 124 (D. Kan. 2013) (consumer cannot proceed with contract claim that is not factually distinct from breach of warranty claim); Alcan Aluminum Corp. v. BASF Corp., 46 U.C.C. Rep. Serv. 2d 690 (N.D. Tex. 2001), aff’d, 51 Fed. Appx. 482 (5th Cir. 2002) (table); Renaissance Leasing, L.L.C. v. Vermeer Mfg. Co., 322 S.W.3d 112, 130–131 (Mo. 2010); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894 (Tex. App. 2002). See also Lyda Constructors, Inc. v. Butler Mfg. Co., 103 S.W.3d 632 (Tex. App. 2003) (contrasting breach of contract with breach of warranty). Cf. BHC Dev., L.C. v. Bally Gaming, Inc., 985 F. Supp. 2d 1276 (D. Kan. 2013) (buyer can assert contract claim when it does not merely mirror warranty claim but alleges violation of a specific contract term, here a promise to use reasonable efforts to restore product to good working order).