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Consumer Warranty Law: 1.1.3 This Chapter Contains Important Substantive Information

This chapter provides introductory material concerning this treatise: a description of its digital edition; a brief summary of the contents of its other chapters, and appendices, and also the pleadings and other companion material available online; conventions and caveats for use of this treatise; and a listing of other NCLC treatises with related content.

Of even greater significance, this chapter covers a number of important substantive topics, provides an overview of warranty law, and an automobile litigation checklist. The substantive topics include:

Consumer Warranty Law: 1.1.5 The Appendices and Indices

The appendices reprint or summarize key warranty laws and contain various practice aids. The Magnuson-Moss Warranty Act, the Federal Trade Commission’s Magnuson-Moss rules, relevant sections of the federal National Manufactured Housing Construction and Safety Standards Act, and the Federal Trade Commission’s Used Car Rule are reprinted in Appendices A–D, infra, respectively.

Consumer Warranty Law: 1.1.6 Additional Pleadings, Primary Sources, and Practice Tools

The treatise’s digital edition also includes pleadings and discovery, practice tools, and primary sources that can easily be downloaded, emailed, and cut and pasted into documents. They are listed at the bottom of the digital table of contents found in the website’s left pane and are fully searchable. Search filters allow users to search only for pleadings, only for primary sources, or only for practice tools. Searching for pleadings is recommended using the Advanced Pleadings Search tool, found above the Search box.

Consumer Warranty Law: 1.4.4 Computer Software

Computer software is generally considered to fall within the definition of goods.123 However, development of software or design of a website is likely to be considered services.124 Maryland and Virginia have adopted the Uniform Computer Information Transactions Act, which has special provisions regarding software sales, including special warranty provisions and validation of terms contained in post-sale documents such as shrink-wrap licenses as long as the buyer has the option to return the prod

Consumer Warranty Law: 1.4.6 Manufactured Homes, Houses, and Real Property

The Magnuson-Moss Warranty Act applies to consumer products, defined as “any tangible personal property.”130 Real property and houses are thus not covered. The Act may apply to manufactured homes to the extent they are treated as personal property rather than real property under state law.131 In New York, the sale of shares in a cooperative apartment is considered a sale of goods covered by Article 2.132

Consumer Warranty Law: 1.4.10 Definition of Buyer

The UCC confers many of its rights upon the buyer, defined as “a person who buys or contracts to buy goods.”161 Whether a person pays the seller directly, or allocates insurance funds or public benefits to cover the purchase, is irrelevant to this definition.162 While the definition of sale refers to passing of title,163 the definition of buyer does not, and the language “contracts to buy” is an additional indication that passing of title is not ne

Consumer Warranty Law: 1.4.11 Definition of Seller

The Code defines seller as “a person who sells or contracts to sell goods.”165 An entity that contracts to sell goods meets this definition even if it never has title or possession of the goods it is selling, but arranges for another company to deliver them to the buyer.166 This term may not include the seller’s individual sales representatives.167 Nor does it include individual corporate officers unless the corporate veil can be pierced.

Consumer Warranty Law: 1.1.7 Conventions and Caveats

Although the official comments to the UCC are extensively cited, some states have not adopted the comments. While still helpful in states not adopting the comments, practitioners should ascertain whether their state has adopted the official comments or adopted their own state comments to the UCC.

Consumer Warranty Law: 1.2.1 Magnuson-Moss Warranty Act

The federal Magnuson-Moss Warranty Act17 is central to most consumer warranty cases. The Act substantively regulates consumer warranty terms and remedies, and specifies disclosure requirements. A key concept in the Act is the term “written warranty,” which refers to those express warranties that are in writing and that meet certain standards specified by the Act. The Act also has important applications to claims based on breaches of implied warranties and service contracts.

Consumer Warranty Law: 1.2.3 UCC Article 2A

Every state except Louisiana has enacted UCC Article 2A, governing the relationship of lessor to lessee. Article 2A warranty provisions generally parallel those of Article 2, although Article 2A creates different warranty rights depending on whether the lessor helps the consumer select the goods or whether the lessor is unconnected to the sale.

Consumer Warranty Law: 1.2.4 UCC Article 1

Article 1 of the UCC does not directly address consumer warranty issues, but its provisions have an important impact on those issues. Among other things, Article 1 includes definitions for such critical terms as “agreement” and “conspicuous.” It establishes the duty of good faith, the rule of liberal construction, and the rule that remedies are to be liberally administered. It requires that trade usage, the parties’ course of dealing and, in revised Article 1, the parties’ course of performance be taken into account in determining the parties’ contractual obligations.

Consumer Warranty Law: 1.2.6 The California Song-Beverly Consumer Warranty Act

California’s Song-Beverly Consumer Warranty Act33 includes a variety of requirements for consumer warranties on new goods that are sold at retail in California.34 The Act thus applies to sales of new vehicles, manufactured homes, and a broad range of other consumer products, and is not limited to just one product as are the statutes discussed in

Consumer Warranty Law: 1.2.8 Unfair and Deceptive Acts and Practices (UDAP), Fraud

While the UCC, the Magnuson-Moss Warranty Act, lemon laws, and manufactured home warranty statutes provide the core consumer warranty rights, a state unfair and deceptive acts and practices (UDAP) claim is often indispensable when the consumer’s rights under those other core statutes are overly restricted by warranty disclaimers, limitations of remedies, privity requirements, the parol evidence rule, and notice requirements.65 As described in more detail in

Consumer Warranty Law: 1.5.2 Cumulation of Rights Under UCC and State and Federal Consumer Legislation

The Uniform Commercial Code (UCC) does not repeal earlier consumer protection laws.178 Such statutes provide cumulative protection to buyers. UCC 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.”

Consumer Warranty Law: 1.6.1 Overview

Federal preemption of state warranty-type claims is an issue for certain highly regulated types of products, primarily medical devices, medications, pesticides, and herbicides. Manufacturers also sometimes argue, usually without success, that federal regulation of motor vehicle safety issues preempts consumer claims.