Warranties are guarantees made by a seller offering assurances as to the nature, quality, or reliability of a product. If the product fails to perform as promised, the seller is liable for breach of warranty. Warranties may be express or implied:
- Express warranties are communicated to the buyer through the seller’s words or actions. Written consumer warranties, instructions for seeking a refund or replacement if the product fails, product descriptions, and product samples are some examples.
- Implied warranties are not communicated by the seller, but are assumed (or implied) by the law, unless the seller disclaims them:
- Implied warranty of merchantability: When a seller specializes in a certain type of product, the law implies a guarantee that the quality of the products will be equal to what is generally acceptable in the market and that the products will generally be fit for their ordinary purpose.
- Implied warranty of fitness for a particular purpose: If a seller knows the particular purpose for which a customer is purchasing a product and knows that the customer is relying on the seller’s skill or judgment, the law presumes an implied warranty of fitness for that purpose.
If a seller does not wish to be held to implied warranties, the seller may issue a disclaimer. A disclaimer is a renunciation of the promises contained in an implied warranty. Disclaimers are typically accomplished through conspicuous language regarding merchantability or "as is" language. Because (unlike implied warranties) express warranties are voluntarily communicated by the seller, express warranties cannot be disclaimed.
Disclaiming a warranty is not the same as breaching a warranty. A disclaimer is part of the sales agreement from the beginning and is agreed to by the buyer as well as the seller. Disclaimers merely clarify the terms of the sale.
On the other hand, when a seller fails to deliver on one of the express or implied guarantees to which the seller is bound, the seller may be liable to the buyer for breach of warranty. "Breach of warranty" is a contract law claim and the typical remedy is expectation damages (also known as "benefit of the bargain" damages).
Dealing with warranties and other product issues can be challenging. You may wish to hire a qualified lawyer if you need help with products and services laws, which can vary by region. An attorney can help you draft a warranty or disclaimer, explain your rights and obligations under a sales contract, advise you on available legal remedies, and even file a claim on your behalf.