Skip to main content

Search

Consumer Warranty Law: 11.4.3.3 Recklessness As an Alternative to Negligence

In states that do not overtly recognize the tort of negligent misrepresentation, a plaintiff may be able to prevail on a claim labeled as intentional misrepresentation that might otherwise be pleaded as negligent misrepresentation. For its scienter requirement the intentional misrepresentation claim would rely not on the claim that the defendant knew that the representation was false, but that the defendant acted in reckless disregard of the truth.239

Consumer Warranty Law: 11.4.4 Innocent Misrepresentation

A seller may make a statement, reasonably believing it to be true, which later turns out to be false. For example, a seller of a used car might tell a buyer that the car had never been in an accident. If the representation was based on information offered by the person trading in the car, who concealed that the car had been in a collision and there was nothing to suggest the contrary to the seller, the seller has made an innocent misrepresentation.

Consumer Warranty Law: 11.4.5 Concealment or Nondisclosure

Fraud by silence is a species of fraud. The Florida Supreme Court has stated that “the law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.”247

A Maryland decision summarizes the elements of this tort as follows:

Consumer Warranty Law: 11.4.6 Justifiable Reliance and the Buyer’s Opportunity to Inspect

Regardless of whether the claim asserts intentional, negligent, or innocent misrepresentation, a plaintiff must show reliance on the representation and that such reliance was reasonable.259 Reliance that might otherwise be justifiable may be deemed unjustifiable if contradictory information is present but the consumer fails to investigate it.260 Whether a buyer had a reasonable opportunity to inspect the property or whether a seller prevented a buyer from fully inspecting it should generally be

Consumer Warranty Law: 11.4.7 Remedies

Many jurisdictions permit plaintiffs who prove intentional misrepresentation or fraud to obtain benefit of the bargain damages.262 The Restatement (Second) of Torts measures damages for negligent misrepresentation as (1) the difference between the purchase price and the value of what the buyer received, plus (2) other pecuniary loss suffered as a consequence of the buyer’s reliance on the misrepresentation.263 For innocent misrepresentation, the Restatement limits damages to th

Consumer Warranty Law: 11.4.8 Pleading and Practice Tips

The count or counts in a complaint or counterclaim alleging misrepresentation should include each element of the tort in a separate paragraph. Plead as many different types of misrepresentation as the known facts will permit, and move to amend to include more as the facts are developed. The same fact pattern may well give rise to a complaint for intentional, negligent, and innocent misrepresentation.

Consumer Warranty Law: 4.2.2.2 “Merchants”

Because the implied warranty of merchantability protects a buyer’s reasonable expectations of quality when buying from a professional seller, the warranty arises only when the seller is a merchant with respect to goods of the kind sold in the transaction. Merchant is defined in section 2-104(1) as:

Consumer Warranty Law: 4.2.2.3 Merchant Must Be a Merchant with Respect to Goods of That Kind

A seller may be a merchant and yet not be a merchant with respect to goods of that kind, if the sale is an “isolated” sale that is incidental to the seller’s main business.50 A bank that routinely sells repossessed cars is a merchant with respect to cars, but may not be a merchant with respect to the isolated sale of a large truck, because the sale of trucks is not the bank’s business.51 An air-conditioning installer who sold one pump in six years is a merchant, but not a merchant with respect to th

Consumer Warranty Law: 4.2.3.1 General

Merchantability is a standard of quality and, as such, the concept of merchantability eludes precise definition. The Code does not define merchantable. Instead, section 2-314(2) provides that, to be merchantable, goods must at least meet six criteria:

Goods to be merchantable must be at least such as:

Consumer Warranty Law: 4.2.3.2.1 Ordinary purposes

Whether goods are fit for their ordinary purposes depends on what the “ordinary” purposes are and whether the goods are “fit” for those purposes. These determinations are questions of fact.62 The ordinary purposes of goods are determined by the function the goods were designed to perform, their normal use, and their unusual but foreseeable uses.63 In most cases, the issue is straightforward.

Consumer Warranty Law: 4.2.3.2.2 General meaning of fitness

To be fit for their ordinary purposes, goods must be of an adequate quality appropriate for those purposes. The words “adequate,” “quality,” and “appropriate” contain the same inherent definitional limitations as the word “merchantability.” Judicial precedent and common sense ideas of reasonableness yield some principles which form a framework for the fitness concept. The basic concept is that the goods must satisfy reasonable consumer expectations.72 Two general principles of fitness for the ordinary purpose are discussed below.

Consumer Warranty Law: § 5412. Noncompliance with standards or defective nature of manufactured home; administrative or judicial determination; repurchase by manufacturer or repair by distributor or retailer; reimbursement of expenses, etc., by manufacturer for failure to comply; jurisdiction and venue; damages; period of limitation

(a) If the Secretary or a court of appropriate jurisdiction determines that any manufactured home does not conform to applicable Federal manufactured home construction and safety standards, or that it contains a defect which constitutes an imminent safety hazard, after the sale of such manufactured home by a manufacturer to a distributor or a retailer and prior to the sale of such manufactured home by such distributor or retailer to a purchaser—

Consumer Warranty Law: § 5414. Notification and correction of defects by manufacturer

(a) Notice to purchaser within reasonable time after discovery of defect

Every manufacturer of manufactured homes shall furnish notification of any defect in any manufactured home produced by such manufacturer which he determines, in good faith, relates to a Federal manufactured home construction or safety standard or contains a defect which constitutes an imminent safety hazard to the purchaser of such manufactured home, within a reasonable time after such manufacturer has discovered such defect.

Consumer Warranty Law: § 5415. Certification by manufacturer of conformity of manufactured home with standards; form and placement of certification

Every manufacturer of manufactured homes shall furnish to the distributor or retailer at the time of delivery of each such manufactured home produced by such manufacturer certification that such manufactured home conforms to all applicable Federal construction and safety standards. Such certification shall be in the form of a label or tag permanently affixed to each such manufactured home.

Consumer Warranty Law: § 5416. Consumer’s manual; contents

The Secretary shall develop guidelines for a consumer’s manual to be provided to manufactured home purchasers by the manufacturer. These manuals should identify and explain the purchasers’ responsibilities for operation, maintenance, and repair of their manufactured homes.

[Pub. L. No. 93-383, § 617, 88 Stat. 711 (1974); Pub. L. No. 96-399, § 308(c)(4), 94 Stat. 1641 (1980); Pub. L. No. 97-35, § 339B(c), 95 Stat. 417 (1981)]

* * *

Consumer Warranty Law: § 5421. Prohibition on waiver of rights

The rights afforded manufactured home purchasers under this chapter may not be waived, and any provision of a contract or agreement entered into after August 22, 1974, to the contrary shall be void.

[Pub. L. No. 93-383, § 622, 88 Stat. 712 (1974); Pub. L. No. 96-399, § 308(c)(4), 94 Stat. 1641 (1980)]

Consumer Warranty Law: § 5422. State enforcement

(a) Jurisdiction of State agency or court under State law

Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any manufactured home construction or safety issue with respect to which no Federal manufactured home construction and safety standard has been established pursuant to the provisions of section 5403 of this title.

Consumer Warranty Law: 4.2.3.2.3 Able to do ordinary job

The first and most elementary principle of fitness is that the goods must be good enough to be able to do the ordinary job—that is, they cannot be so defective that they cannot do the job.74 A car must be substantially free of defects.75 A manufactured home must be sufficiently free of defects that it can serve as a modern, comfortable dwelling in which to reside and entertain guests without discomfort or embarrassment.76 Inconsistent or erratic performa