Express warranties, disclaimers and implied warranties, Oh My!


Express warranties are direct claims a seller makes to get the buyer to buy goods or services. They are written in a contract. They look like this:

The software will perform substantially in accordance with the specifications for a period of 90 days from installation.

The widget will be free of manufacturing defects.

But every contract in North Carolina, even an oral or verbal contract, has some implied protections for the buyer. Because these are implied, form written contracts often “disclaim” implied warranties of merchantability or fitness for a particular purpose.

Here is an overview of what these implied contracts mean, and when you need to make sure the Seller

does not disclaim them.

One of those is the implied warranty of merchantability.

This means, that if you buy goods from a merchant for use as they are ordinarily used, the goods will be

fit for this ordinary purpose. If they are not in good working order, they can be returned, even without a

written contract. Look at the written warranty in the contract. The written warranties may cover

merchantability or your use of the goods. If you need more than what is there, negotiate this term.

What if you are not using something in an ordinary manner? What if you have a special need and youtalk to the Seller about this? If you tell the seller of your particular purpose, and the seller recommends

a specific product, the contract carries an implied warranty of “fitness for a particular purpose.”

In this case, you are relying on the Seller’s expertise and judgment, and you need the contract to reflect

this.

For example, you have a pathway outside your restaurant outside seating gazebo that has poor

drainage. The landscaping company recommends a certain kind of gravel, stepping stones and plants

that will allow customers to safely and comfortably take the path without getting wet feet or slipping in

the mud. If the stepping stones crumble from normal use, or the plant won’t grow in the gravel, the

Seller landscaping company has violated its warranty of fitness for a particular purpose.

If the restaurant, however, provided the specifications to the landscaping company of what it needed,

the restaurant did not rely on the Seller’s expertise and this warranty would not apply.

Things that are sold “as is” are not covered by these type of warranty.

If you have any questions about the warranties or disclaimers in a contract, contact Legal Direction.

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