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 basis of the agreement between the buyer and seller. This warranty does not require formal language or a deliberate 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 notified the seller of the breach and suffered an injury as a result. 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 understanding that it will be passed on to the ultimate buyer. This means that even if the plaintiff was not the direct purchaser from the defendant, they may still have a claim for breach of express warranty if the aforementioned conditions are met.
