Understanding express warranties, disclaimers and implied warranties

Express warranties are direct claims a seller makes to get the buyer to buy goods or services. They are written in a contract. They look like this:

The software will perform substantially in accordance with the specifications for a period of 90 days from installation.The widget will be free of manufacturing defects.

But every contract in North Carolina, even an oral or verbal contract, has some implied protections for the buyer. Because these are implied, form written contracts often “disclaim” implied warranties of merchantability or fitness for a particular purpose.

Here is an overview of what these implied contracts mean, and when you need to make sure the Seller

does not disclaim them.

One of those is the implied warranty of merchantability.

This means, that if you buy goods from a merchant for use as they are ordinarily used, the goods will be fit for this ordinary purpose. If they are not in good working order, they can be returned, even without a written contract. Look at the written warranty in the contract. The written warranties may cover merchantability or your use of the goods. If you need more than what is there, negotiate this term.

What if you are not using something in an ordinary manner? What if you have a special need and you talk to the Seller about this? If you tell the seller of your particular purpose, and the seller recommends a specific product, the contract carries an implied warranty of “fitness for a particular purpose.” In this case, you are relying on the Seller’s expertise and judgment, and you need the contract to reflect this.

For example, you have a pathway outside your restaurant with a gazebo for outside seating that has poor drainage. The landscaping company recommends a certain kind of gravel, stepping stones and plants that will allow customers to safely and comfortably take the path without getting wet feet or slipping in the mud. If the stepping stones crumble from normal use, or the plant won’t grow in the gravel, the Seller landscaping company has violated its warranty of fitness for a particular purpose.

If the restaurant, however, provided the specifications to the landscaping company of what it needed, the restaurant did not rely on the Seller’s expertise and this warranty would not apply.

Things that are sold “as is” are not covered by these types of warranty.

If you have any questions about the warranties or disclaimers in a contract, contact Legal Direction.