The flashcards below were created by user
on FreezingBlue Flashcards.
PROOF OF FAULT UNNECESSARY
If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the defendant is liable. Plaintiff need not prove any fault on defendant's part.
IMPLIED WARRANTY OF MERCHANTABILITY
When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable.
Merchantable means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used.
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
-- the seller knows or has reason to know the particular purpose for which the goods are required; and
-- the buyer is relying on the seller's skill or judgement to select or furnish suitable goods.
Not essential that the seller be a merchant of the type of goods in question.
No vertical privity required.
In most states the horizontal privity required is that the protection will apply to a buyer's family, household, and guests who suffer personal injury.
Must be specific and are narrowly construed.
Contractual limitations on personal injury damages resulting from a breach of warranty for consumer goods are prima facie unconscionable.
Damages may be recovered for personal injury, property loss, and purely economic loss.
ASSUMPTION OF RISK -- when plaintiff assumes the risk by using a product while knowing of the breach, any resulting injuries are not proximately caused by the breach.
CONTRIBUTORY NEGLIGENCE -- unreasonable failure to discover the defect does not bar recovery but unreasonable conduct after discovery does bar recovery.
COMPARATIVE NEGLIGENCE -- in comparative negligence states
NOTICE OF BREACH -- buyer is required to give notice of breach within a reasonable amount of time.