Under UCC § 2-313(1)(a), “[a]ny 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.”
The requirements of this section can be broken down into four elements:
The phrase “[a]ny affirmation of fact or promise” found in section 2-313(1)(a) is clearly intended to be very broad. In most cases, there is some explicit representation that is unquestionably an affirmation of fact or promise.
Statements about a product’s characteristics create express warranties.20 Courts have recognized express warranties in statements that a manufactured home was a particular size,21 that a car had never been wrecked,22 that a car or manufactured home was new or had only one other owner,23 that an odometer was correct,24 that a used car was still
Statements that the seller or previous owner repaired the car in a specific fashion or maintained it regularly, such as “this one has new brakes,” “we gave it a full inspection and tune-up,” or “it was driven only on Sundays to church,” are all affirmations of fact.41 A representation of energy efficiency is an affirmation of fact of the particular product’s characteristics, giving rise to an express warranty.42
In most cases, the limitation that affirmations or promises must relate to the goods is of no consequence because the statements clearly pertain to product quality, characteristics, identity, condition, or performance. Some seller statements, however, probably do not relate to the goods and will not be express warranties.
An express warranty by description of the goods arises from any description of the goods which can reasonably be considered to have any role in the overall bargain of the parties. Section 2-313(1)(b) provides: “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.”
A seller who sells a product by use of or by reference to an example of the product creates an express warranty that the product sold is the same as that example.154 Section 2-313(1)(c) provides that “[a]ny 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.”
As with the two other types of express warranty, the seller need not verbally describe the model or make any particular representations to create an express warranty by model. Merely setting up a model manufactured home on the lot, with some contract reference to the model number, probably creates an express warranty by model. The display of a new car in a dealer’s showroom or a manufactured home on the dealer’s lot may warrant that the same type car or manufactured home, purchased by the buyer, will have the same appearance.
The scope of the express warranty by sample or model is a question of fact, and is often difficult to resolve. Generally, whatever the buyer sees in the example must appear in the product unless the seller warns the buyer of discrepancies before the deal is made.162 A manufactured home with a green carpet, small windows, or missing doors does not conform to a model with blue carpet, large windows, or doors in place.163
To constitute an express warranty, an affirmation of fact or promise must be “part of the basis of the bargain.”165 The UCC incorporates this requirement for all express warranties, whether created by affirmations of fact, promises, descriptions of the goods, models, or samples.
Under the Uniform Sales Act, the UCC’s predecessor, actual reliance on a statement was a necessary element in an express warranty case. Section 2-313(1) omits any reference to reliance, substituting the “basis of the bargain” language. Comment 3 to section 2-313 makes it clear that this omission was deliberate: “[n]o particular reliance on such statements need be shown in order to weave them into the fabric of the agreement.”
The “basis of the bargain” requirement functions to prevent express warranties from arising from statements that the buyer knew were incorrect before proceeding with the sale.187 Thus, if the seller tells the buyer that a manufactured home will be just like a model except that it will not have a refrigerator, the express warranty by model does not promise a refrigerator.
In approaching the basis of the bargain requirement, it is helpful to provide some evidence of the consumer’s lack of sophistication192 with regard to the goods and contracts. Evidence of the buyer’s relative lack of sophistication with regard to the goods will help show that the buyer placed more weight on the seller’s statements than on their own experience.
A seller’s statements made at delivery, including oral statements and statements on the product label or in the enclosed warranty given to the buyer at delivery, should be part of the basis of the bargain.
It is quite common in consumer transactions for the buyer not to read all warranty statements by the time of delivery. The consumer may not read the written warranty, the product instructions, or even the labels or other product information until after delivery or when something goes wrong. There also may be affirmations in the contract documents that the buyer does not notice. Do these statements then create express warranties?
Oral (and sometimes written) statements of fact or promises are often made by sellers or manufacturers to buyers after delivery. For example, the seller, upon delivering a product, may for the first time make assurances about the product or the seller’s obligations. The post-sell is an established sales technique to increase goodwill and reduce buyer’s remorse. Other post-sale statements occur when problems arise, and the seller promises repair or price adjustment.
One reason that post-sale statements can be express warranties even after the bargain has been completed is that they can be viewed as modifications of the initial bargain, and thus part of the basis of the amended bargain. The modification argument arises directly from comment 7 to section 2-313. That comment explains: “The precise time when words of description or affirmation are made or samples are shown is not material. . . .
The one potential obstacle, for post-sale oral statements, to the modification argument discussed in § 3.6.3.2.1, supra, is the statute of frauds. Section 2-201 requires contracts for the sale of goods for the price of $500 or more to be evidenced in writing.
Even if a court finds that the statute of frauds requires the modification to be in writing, there are a number of ways that courts can still give effect to an oral modification.
A buyer who wants to introduce evidence of the seller’s oral statements or prior written statements to demonstrate the extent of the seller’s express warranty must overcome the hurdle of the parol evidence rule. The parol evidence rule is a rule of substantive contract law that makes extrinsic evidence inadmissible to vary a written agreement.
Section 2-202 is the UCC’s version of the parol evidence rule. It reads in full:
The UCC’s parol evidence rule is basically a rule to determine what the parties intended the contract terms to be.262 It does not even apply unless both buyer and seller intended the written contract to control over earlier statements and promises. Therefore, the first question is the parties’ intent regarding the finality and scope of the writing.
The UCC parol evidence rule is intended to liberalize the common law rule and abolish any presumption that a writing is intended to be a completely integrated contract.265 Use of the word “certainly” in comment 3 to section 2-202 emphasizes the presumption that parol evidence is admissible. Before the court can exclude evidence of a term, it must find that the term would “certainly” have been included in the writing had it been agreed upon.
Some courts have used a “four corners of the document” test to determine whether a writing is the parties’ complete and exclusive agreement. If the writing appears on its face to be complete and exclusive, the court refuses to allow any other evidence on this question.269
Consideration of whether to exclude parol evidence should encompass the equities and surrounding circumstances of the case.
Sometimes the writing plainly shows that it was not intended to be final or not intended to be complete and exclusive.