A warranty is a guarantee made by the seller of goods or products about the good or product. Through a warranty, a seller makes an assurance about the quality of the goods, products or services the seller provides. A warranty is useful to a buyer because if the product fails to perform in the way the buyer believed it would, the seller may be held accountable.

There are generally two types of warranties, each offering certain levels of protections and rights.

1. Express Warranties

Express warranties are warranties created by the overt words or actions of a seller. An express warranty can be created by:

  • A promise by the seller about a product
  • A description of the product
  • A model of the product

2. Implied Warranties

An implied warranty is a warranty created by the law. Implied warranties automatically apply when the seller offers some product for sale, even if the seller says nothing about the way the product will perform. Two common implied warranties are for merchantability, and fitness for a particular use.

  • Implied Warranty of Merchantability

The implied warranty of merchantability guarantees that the product is fit to use in a way that the product is supposed to be used  When a seller sells a product, the implied warranty of merchantability guarantees that:

    • The product is fit and suitable and can thus be used for the ordinary purposes that buyers would intend to use it
    • The quality of the product is adequate
    • The product conforms to any promises made by the manufacturer, usually found on the container or label
  • Implied Warranty of Fitness for a Particular Use

When you tell the seller that you want to use a product in a specific way and the seller gives you a product, they are warranting that the product they provided is fit for the use you had in mind. The implied warranty of fitness for particular use applies when:

    • The seller knows that the buyer will be using a product or good for a particular purpose
    • The seller knows that the buyer is relying on the seller’s expertise and knowledge about the product’s ability to be used in the way the seller would like

Who Is Held Responsible for a Breach of an Implied Warranty?

The law implies warranties only when the merchant or seller typically deals in the sale of the products or goods being sold. Implied warranties do not apply to an individual who sells a product once. For example: A warranty is implied when an automotive store sells a car tire because the automotive store deals with car tires regularly. A warranty is not implied when a grandmother sells her old toaster, unless the grandmother deals in the sales of old toasters routinely. Thus, whether a breach of warranty has occurred can be complex and is fact specific.

Can a Seller Disclaim Implied Warranties?

For a seller to avoid possible liability for an implied warranty, the seller needs to inform the buyers, in writing, that the seller would not be liable if the product is defective or does not perform as the buyer believed it would.

What About “As Is” Products?

Some sellers sell their products “as is” in order to disclaim the implied warranties. However, sellers may still be liable when they sell products “as is.” If a product is dangerous, defective or causes injury to a person, the seller may still be liable for the damage done. Additionally, many states regulate how a seller can sell a product “as is.”

Should I Consult an Attorney?

Both the Uniform Commercial Code and local state law govern the law of warranties. A business lawyer can help you determine whether you, as a seller, may be bound by a warranty, and help you review language on labels so that the seller is not warranting anything without intending to. A consumer lawyer can likewise help you as a buyer when a product fails and wish to know if the seller of that product has breached a warranty.