An express warranty is any affirmation of fact or a promise made by a seller to a buyer which relates to the subject matter of the agreement and becomes a part of the basis of the bargain. It is not necessary to the creation of an express warranty that the seller use formal words such as warrant or guarantee or that the seller have a specific intention to make a warranty.
The elements of a claim for breach of express warranty for services are (1) the defendant sold services to the plaintiff; (2) the defendant made a representation to the plaintiff about the characteristics or quality of the services by affirmation of fact, by promise, or by description; (3) the representation became part of the basis of the bargain; (4) the defendant breached the warranty; (5) the plaintiff notified the defendant of the breach; and (6) the plaintiff suffered injury.
Privity (a direct relationship between the parties) is not required where the defendant furnishes samples to a middleman or makes a transferable express warranty knowing the samples or warranty will likely be submitted to the ultimate buyer.
In Texas, an express warranty is created when a seller makes a specific affirmation of fact, promise, or description about the services provided, which then forms part of the contract with the buyer. The creation of an express warranty does not require formal words such as 'warrant' or 'guarantee,' nor does it require the seller to have an explicit intention to create a warranty. To establish a breach of express warranty for services in Texas, a plaintiff must demonstrate that the seller sold services, made a representation about the services that became part of the contract, breached this warranty, and that the plaintiff suffered damages as a result. The plaintiff must also have notified the seller of the breach. Notably, Texas law does not require privity of contract for a breach of express warranty claim when the seller provides samples to a middleman or issues a transferable warranty, with the expectation that it will reach the ultimate buyer.
