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University of South Dakota School of Law

Wednesday, March 22, 2017

Robert Brain (Loyola Los Angeles) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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A PROPOSAL TO ELIMINATE UCC § 2-315

Robert Brain, Loyola Law School, Los Angeles

            It is my contention that UCC § 2-315, the provision on the implied warranty of fitness for a particular purpose, is: (1) unnecessary; and (2) causes more problems than it solves.  As such, I believe it should be eliminated from the UCC.

Bob Brain (Loyola LA)             The implied warranty of fitness for a particular purpose is unnecessary because a fitness case is, in truth, an express warranty case and can be analyzed under § 2-312.  The only difference from what the Code now recognizes as an express warranty situation and a fitness situation is that the attribute of the good comes initially from the buyer and not the seller.  However, in both cases that parties are contracting based on a shared belief that the good has certain, specified (not implied) qualities.  This can be seen by the two situations below:

             Situation One: A scuba diver walks into a dive shop, looking for a watch that will be waterproof down to 200 feet. She tells the sales associate that she’s looking for a watch for a deep dive.  The clerk says, “This one is guaranteed to be watertight down to 200 feet.” She buys the watch.

             Situation Two: The same woman walks into the same shop and talks to the same associate.  She says, “I’m doing deep diving, and am looking for a dive watch that will stay watertight down to 200 feet.”  The associate picks up the same watch as before, and says, “Here you go.”  The woman buys the watch.

            If the watch starts leaking at 60 feet, under current law, the woman would sue for breach of express warranty under Situation One, but would have to sue for breach of the implied warranty of fitness under Situation Two. The legitimate expectation of the consumer is identical in the two situations and should be analyzed identically.  If the words and actions of the associate in Situation Two are taken as affirming the 200 foot watertight attribute initially broached by the buyer, there is no difference between the two. As such, what are now fitness cases could, and should, be analyzed as breaches of express warranty.

            Conceptually it is difficult to justify the fitness warranty as an “implied” warranty.  In the merchantability cases under § 2-314, it is the attribute of the good – that it is of ordinary quality, for example – that is implied into the transaction.  But under § 2-315, the attribute of the good is expressed; what is “implied” is some representation by the seller as to that expresses attribute, but as noted above, the words and actions of the seller can easily be viewed as communicating that the seller is warranting the attribute under existing law.  It is an “implied” warranty in the same way we say a contract by conduct is an “implied-in-fact” contract.  But we treat implied-in-fact contracts as if they were express contracts, and we should so the same for fitness.

             Another issue is that courts have problems determining whether particular cases should be analyzed as a fitness or a merchantability case.  For example, suppose the buyer asks for “heavy-duty hiking boots” and suppose the shoes come apart upon their first wearing.  Is the proper claim that the boots are not fit as ordinary heavy-duty hiking boots (or even as just boots), or is it a fitness problem because they do not measure up as heavy-duty boots?  Courts have struggled with this issue from the first English case in which the fitness warranty was birthed. 

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