Express warranties are created by the seller of a product if they are part of the basis of the bargain, (part of the reason for purchase of the product) by making or showing:
- any affirmation of fact or promise made by the seller to the buyer relating to the goods;
- any description of the goods; or
- any sample or model of the product.
It is not necessary that the seller use formal words such as "warrant" or "guarantee" when making a warranty. Nor is it necessary that the seller intend to make a warranty. However, expression of the seller’s opinion or commendation of the goods does not constitute a warranty, nor does mere "puffing."
"Part of the Basis of the Bargain" is broadly interpreted. The term "bargain" encompasses the entire transaction and surrounding circumstances and specific evidence of reliance on a statement is unnecessary. The customer must usually only show that he read or heard and believed the statement, but other circumstances or contractual disclaimers can make it unreasonable for the buyer to believe that statements or promises were part of the basis of the bargain.
The statement need not be made by the actual retail seller, but can be the manufacturer’s statement or promise, or that of a third party that gets introduced into the bargaining process.
In early 1975, Congress enacted the Magnuson-Moss Warranty – Federal Trade Commission Improvement Act, found at 15 U.S.C. §§ 2301-12. The Act applies to consumer product warranties – i.e., a consumer product being one "normally used for personal family or household purposes," and it has been implemented by FTC regulations found at 16 C.F.R. §701 et. seq.
Under the Act, effective July 5, 1975, every warranty in writing must fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty, including whether the warranty is a full or limited warranty in accordance with the standards set forth in the Act.
Please feel free to contact me with any questions that you may have about Express Warranties, Breach of Warranty, or any other defective automobile related issue at 1-888-LEMON-44 or via email to Attorney Greg Artim