IMPLIED WARRANTY
A promise, arising by operation of law, that something that is sold will be merchantable and fit for the purpose for which it is sold.
Every time goods are bought and sold, a
sales contract is created: the buyer agrees to pay,
and the seller agrees to accept, a certain price in
exchange for a certain item or number of items.
Sales contracts are frequently oral, unwritten
agreements. The purchase of items like a candy
bar hardly seems worth the trouble of drafting
an agreement spelling out the buyer’s expecta-
tion that the candy bar will be fresh and edible.
Implied warranties protect the buyer whether or
not a written sales contract exists.
Implied Warranty of Merchantability
Implied warranties come in two general
types: merchantability and fitness. An implied
warranty of merchantability is an unwritten and
unspoken guarantee to the buyer that goods pur-
chased conform to ordinary standards of care
and that they are of the same average grade, qual-
ity, and value as similar goods sold under similar
circumstances. In other words, merchantable
goods are goods fit for the ordinary purposes for
which they are to be used. The UNIFORM COM-
MERCIAL CODE (UCC), adopted by most states,
provides that courts may imply a WARRANTY of
merchantability when (1) the seller is the mer-
chant of such goods, and (2) the buyer uses the
goods for the ordinary purposes for which such
goods are sold (§ 2-314). Thus, a buyer can sue a
seller for breaching the implied warranty by sell-
ing goods unfit for their ordinary purpose.
There is rarely any question as to whether
the seller is the merchant of the goods sold.Nev-
ertheless, in Huprich v. Bitto, 667 So.2d 685 (Ala.
1995), a farmer who sold defective horse feed
was found not to be a merchant of horse feed.
The court stated that the farmer did not hold
himself out as having knowledge or skill pecu-
liar to the sale of corn as horse feed, and there-
fore was not a merchant of horse feed for
purposes of determining a breach of implied
warranty of merchantability.
The question of whether goods are fit for
their ordinary purpose is much more frequently
litigated. Thomas Coffer sued the manufacturer
of a jar of mixed nuts after he bit down on an
unshelled filbert, believing it to have been
shelled, and damaged a tooth. Coffer argued in
part that the presence of the unshelled nut
among shelled nuts was a breach of the implied
warranty of merchantability. Unquestionably,
Coffer was using the nuts for their ordinary pur-
pose when he ate them, and unquestionably, he
suffered a dental injury when he bit the filbert’s
hard shell. But the North Carolina appellate
court held that the jar of mixed nuts was
nonetheless fit for the ordinary purpose for
which jars of mixed nuts are used (Coffer v. Stan-
dard Brands, 30 N.C. App. 134, 226 S.E.2d 534
[1976]). The court consulted the state agricul-
ture board’s regulations and noted that the
peanut industry allows a small amount of
unshelled nuts to be included with shelled nuts
without rendering the shelled nuts inedible or
adulterated. The court also noted that shells are
a natural incident to nuts.
The policy behind the implied warranty of
merchantability is basic: sellers are generally bet-
ter suited than buyers to determine whether a
product will perform properly. Holding the
seller liable for a product that is not fit for its
ordinary purpose shifts the costs of nonperfor-
mance from the buyer to the seller. This moti-
vates the seller to ensure the product’s proper
performance before placing it on the market.
The seller is better able to absorb the costs of a
product’s nonperformance, usually by spreading
the risk to consumers in the form of increased
prices.
The policy behind limiting the implied war-
ranty of merchantability to the goods’ ordinary
use is also straightforward: a seller may not have
sufficient expertise or control over a product to
ensure that it will perform properly when used
