Consumer goods are items of personal property—essentially all goods or property that are not real property (real estate)—that are purchased and used by consumers for personal use rather than by manufacturers to be incorporated into other goods. Consumer goods range from clothing to refrigerators to motor vehicles.
The sale and lease of consumer goods are governed by a patchwork of state and federal laws, including the federal Consumer Product Safety Act (CPSA); state product liability laws; and the Uniform Commercial Code (UCC) as enacted by each state in its statutes.
Express Warranties
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.
Implied Warranties
Many states have laws that provide for implied warranties made by sellers (known as merchants) in sales of goods. These implied warranties are designed to protect buyers of goods whether or not there is a written warranty for the goods, and whether the goods are new or used.
Implied Warranty of Merchantability
Implied warranties generally provide assurances or promises that the goods are fit for their intended purpose and that the goods are merchantable—meaning they conform to or meet an ordinary buyer’s expectations. This implied warranty is known as the implied warranty of merchantability.
In some states this implied warranty of merchantability may be disclaimed by a seller or merchant when the goods are sold with the disclaimer that they are sold “as is” or “with all faults.” But in some states this warranty cannot be disclaimed—at least not in the sale of new goods.
Implied Warranty of Fitness
The implied warranty of fitness—also known as the implied warranty of fitness for a particular purpose or the implied warranty of fitness for a specific purpose—means a product is guaranteed to be fit for a specific purpose or use, as stated or recommended by the merchant’s salesperson or other representative.
Implied Warranty Against Infringement of Intellectual Property
Some state laws include an implied warranty against infringement of a third-party’s intellectual property. This means that if a merchant sells a product that infringes another person or entity’s intellectual property (patent, copyright, or trademark), they seller that sold the infringing goods must indemnify or protect the buyer against any infringement claim by the owner of the intellectual property.
Where to Find Warranty Laws
Warranties in the sale of goods are usually located in a state’s statutes—often in the state’s adopted version of Article 2 of the Uniform Commercial Code (UCC).
In Texas, the sale and lease of consumer goods are regulated by both state and federal laws. The federal Consumer Product Safety Act (CPSA) sets nationwide standards for product safety, while state product liability laws and the Texas Business and Commerce Code, which incorporates the Uniform Commercial Code (UCC), provide additional regulations. Express warranties in Texas are created when a seller makes a specific promise or affirmation about the quality or characteristics of the goods, and these promises become part of the transaction. A breach of express warranty claim requires the buyer to prove that the seller made a representation that became part of the basis of the bargain, the warranty was breached, the buyer notified the seller, and the buyer suffered an injury as a result. Privity is not necessary if the seller provides samples or a transferable warranty to a middleman for the ultimate buyer. Implied warranties in Texas include the implied warranty of merchantability, which ensures goods are fit for their general purpose and meet ordinary buyer’s expectations, and the implied warranty of fitness, which guarantees that a product is suitable for a specific purpose if the seller advises it. The implied warranty against infringement is also recognized, protecting buyers if a product infringes on intellectual property rights. While some implied warranties can be disclaimed with an 'as is' or 'with all faults' sale, certain protections may not be waivable, especially for new goods. Texas warranty laws can be found in the Texas Business and Commerce Code, which is the state's enactment of the UCC.
