Creation of a Warranty with the Sale of a Product

Creation of a Warranty with the Sale of a Product

Many warranties can be created as part of a transaction by (a) verbal representations and (b) an express written representation.

The Uniform Commercial Code is relatively liberal with regard to the determination as to whether or not any express warranties are created as part of the sale of goods. See N.J.S.A. 12A:2-3-132. An express warranty can be created by any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the bargain, any description of goods which is made part of the basis of the bargain, and any sample or model which is made part of the basis of the bargain. The code specifically states that it is not necessary for the creation of an express warranty that the words "warrant" or "guarantee" be used. See N.J.S.A. 12A:2-3131-2.

The New Jersey Courts have held that a statement in contract of sale descriptive of the thing sold, if intended to be part of contract, is a “condition” on failure of which purchaser may repudiate, or, if rescission is impossible, it may be treated as a “warranty” for breach of which damages may be recovered. Iuliucci v. Rice, 130 N.J.L. 271, 32 A.2d 459 (1943).

No formality or magic words are required to create an express warranty, and thus the husband of a smoker who had died of lung cancer was free to rely on the manufacturer's advertisements to prove the existence and scope of the manufacturer's warranty, even though those ads did not use the words “warrant” or “guarantee.” Cipollone v. Liggett Group, Inc., C.A.3 (N.J.)1990, 893 F.2d 541. A warranty that a machine is “well constructed,” “satisfactory,” or “in good working order” will ordinarily bind the seller. Spring Motors Distributors, Inc. v. Ford Motor Co., 191 N.J.Super. 22, 465 A.2d 530 (A.D.1983), certification granted 95 N.J. 208, 470 A.2d 427, reversed on other grounds 98 N.J. 555, 489 A.2d 660.

Where the supplier of prepared food delivered food not in conformity to samples originally presented and approved, there was a breach of warranty of conformity and fitness for purpose intended. Graulich Caterer Inc. v. Hans Holterbosch, Inc., 101 N.J.Super. 61, 243 A.2d 253 (A.D.1968). The seller's statement that there was a ninety-day guarantee that went with the automobile “in case anything went wrong” would be construed as an express warranty, where made during the conversation preceding the sale; and the price paid for the vehicle would be deemed to constitute consideration for such warranty; but all that such warranty required was that the seller make any necessary repair or replacement. Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J.Super. 313, (App.Div.1956).

Whether cigarette manufacturer made “affirmations of fact” within the meaning of this section, concerning health risks of smoking, and whether such advertisements were the basis of the bargain for the smoker's purchase of manufacturer's cigarettes, were questions for the jury in the suit against the manufacturer. Cipollone v. Liggett Group, Inc., D.N.J.1988, 683 F.Supp. 1487.