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Consumer Warranty Law: 6.2.5.6 Non-Warranty Claims

Claims such as fraud, fraudulent suppression, violation of state unfair and deceptive acts and practices (UDAP) statutes, negligence, and products liability can often be asserted without regard to privity.238 In states that retain vertical privity requirements for warranty actions, these alternative liability theories should be explored. States differ, however, on the extent to which economic losses can be recovered in tort.239

Consumer Warranty Law: 6.2.6 Direct Seller’s Liability on Indirect Seller’s Warranty

If privity requirements prevent consumers from obtaining relief from the manufacturer on its warranty, another possibility is to hold the dealer liable for the manufacturer’s warranty. Generally, the retail seller is not bound by the manufacturer’s warranty, just as the manufacturer is not obligated under the retail seller’s express or implied warranties.240 Two contract theories are available, however, for holding the retail seller liable on the manufacturer’s warranty.

Consumer Warranty Law: 6.2.7 Proving Breach of Warranty Against Indirect Seller

Although exceptions to vertical privity avoid the legal obstacle to manufacturer liability for breach of warranty, an important practical problem remains. The manufacturer’s express warranty often promises “no defects in factory materials and workmanship.” Theoretically then, the buyer is required to prove that the problems arose in the factory rather than during the course of the retail seller’s handling.

Consumer Warranty Law: 6.3.1 Introduction

This section examines the warranty rights of someone other than the actual retail buyer, including a relative or friend for whom the goods were purchased, a recipient of a gift, a subsequent buyer of the product, or a person who received the product from the buyer-spouse through divorce or abandonment. This chapter does not focus on the rights of accident victims, neighbors, passersby, or employees who suffer personal injury or property damage because of the defects in the product.

Consumer Warranty Law: 6.3.2 No Horizontal Privity Requirement When There Is a “Written Warranty” or Implied Warranty

The Magnuson-Moss Warranty Act eliminates horizontal privity problems for written and implied warranties provided to consumers. If the transaction involves a consumer product251 and there is either a “written warranty” as defined by the Act252 or an implied warranty, then any “consumer” can sue for failure to comply with it. “Consumer,” as defined by the Act, includes not only the buyer but also subsequent owners.253

Consumer Warranty Law: 6.3.3.2 Analysis of State Law Variations

Section 2-318 is the only Uniform Commercial Code (UCC) section addressing the rights of nonbuyers. It offers three alternative provisions: Alternatives A, B, and C.255 Alternative C goes the farthest in eliminating horizontal privity, allowing any person who “may reasonably be expected to use, consume or be affected by the goods” and who is “injured” by breach of the seller’s warranty, whether express or implied, to sue the seller.

Consumer Warranty Law: 6.3.3.3 Survey of State Law

Somewhat less than half the states abolish the requirement of horizontal privity, even for economic injury.278 That is, donees and subsequent buyers can enforce warranty rights even when the suit is based on the diminished value of the goods not conforming to their warranty.

Consumer Warranty Law: 6.3.5 Privity Unnecessary If Buyer Is Agent for Ultimate User

In the alternative, it may be possible to show that the buyer was only the consumer’s agent. For example, if the person who handled the purchase was acting as an agent for the eventual user, then this user is actually the buyer, avoiding any horizontal privity issue.281 This theory is useful for a consumer whose spouse, parent, child, sibling, or friend bought the goods at the consumer’s request.

Consumer Warranty Law: 6.3.6 Asserting Warranty Rights As a Third-Party Beneficiary

Even when horizontal privity would otherwise be a bar, a nonbuyer user of the goods may be able to sue the seller for economic loss or property damage as a third-party beneficiary of the warranties given by the seller to the buyer.282 The nonbuyer is a third-party beneficiary if the buyer purchased the goods at least in part for the benefit of the nonbuyer.283

Consumer Warranty Law: 19.1 Introduction

Automobile repairs, home improvements, and other service transactions may only incidentally involve the sale of goods, and thus raise issues as to the applicability of Uniform Commercial Code (UCC) Article 2 and the Magnuson-Moss Warranty Act.

Consumer Warranty Law: 19.2.1 Magnuson-Moss Applicability

The Magnuson-Moss Warranty Act applies to “consumer products,” defined as tangible personal property.1 Consequently, the Act does not apply to services.2 Warranties which relate solely to the quality of a repairer’s work in performing repairs, such as a warranty on the rebuilding of an automobile engine, are not covered.3

Consumer Warranty Law: 19.2.2 UCC Article 2 Applicability

Pure service transactions are not covered by Uniform Commercial Code (UCC) Article 2 because no goods are involved.5 A medical check-up6 or a contract to mow a lawn or to provide legal services, for example, usually involves only services. Health spa7 and buyers’ club8 memberships have been ruled to be services, not goods.

Consumer Warranty Law: 19.3.1 Introduction

Courts differ in how they analyze whether the UCC applies to mixed goods and services transactions. Most courts treat the contract as a whole, and apply the UCC to either all or none of it12 after determining the predominant purpose. The UCC applies to the whole transaction if the predominant purpose is the sale of goods, but not at all if the predominant purpose is services.

Consumer Warranty Law: 19.3.2.2 When the Contract Is Predominantly for Services

When a contract is predominantly for services, many courts analyze it as a whole, and apply non-UCC law to both the goods and the services components.29 This approach is particularly common when goods were provided as part of medical treatment30 or a pharmacist dispensing a prescription medicine is involved.31 Nevertheless, courts are less prone to analyze contracts as a whole when services predominate, holding that the U

Consumer Warranty Law: 19.3.4.2 Finished Product As Determining Predominant Purpose

Instead of attempting to ascertain the parties’ intent, an alternative test asks whether the goods involved are already finished products or are to be made from raw materials, specifically for that contract.67 Thus the sale and installation of overhead doors was within Article 2, even though the installation was a lengthy process, because the doors were already a finished product.68 Most consumer transactions are for finished products, such as cars, appliances, or storm windows, so that the finished

Consumer Warranty Law: 19.4 UCC Applicability by Analogy

Some courts apply UCC Article 2 to service transactions by analogy. The theory is that state legislatures, by enacting the UCC, embellished the common law of warranties, and abandoned the outmoded 19th-century common law principles of caveat emptor or “buyer beware.”

Comment 2 to section 2-313 states that Article 2’s limitation to goods was not intended to preclude common law evolution in other contractual circumstances. Comment 1 to section 1-103 also indicates:

Consumer Warranty Law: 19.5.1 Introduction

If the UCC does not apply to all or part of a transaction, an alternative rule of law must be found. No other statute comprehensively regulates warranty rights in service transactions. The UCC can be applied by analogy, as described in § 19.4, supra.

Consumer Warranty Law: 19.5.2 Common Law Express Warranties

Even without Article 2, consumers should have little difficulty enforcing an express warranty provided in a service or repair transaction.75 The express warranty is akin to an express contract, although privity may not be required for breach of a common law warranty.76 The express warranty is a contract term, and its breach is remedied as a breach of contract.