Ag Law

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Ag Law
2012-05-16 13:57:17

AGB Agrigulture Law
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  1. T/F Dog kill statutes are usually designed to protect livestock animals as well as domesticated wildlife, domestic animals, and family members.
    False. Most dog-kill statutes are only designed to protect livestock-type animals.
  2. Fee Simple Absolute
    "From O to A in fee simple absolute"
    The largest ownership interest possible of potentially infinite duration.

    • Freely transferable and inheritable
    • Interest passes to the state if owner dies and heirless
  3. Fee Simple Determinable
    "From O to A for so long as the land shall be used for church purposes"
    The ownership interest lasts only until the designated state of affairs ceases/occurs. Residue of fee simple determinable may be retained or transferred by a "gift over". (If retained, possiblility of reverter, if transferred, transferee gest an executory future interest.)
  4. Fee simple subject to a condition subsequent
    "From O to A provided, however, that the land hereby conveyed shall be used for no other purpose than as agricultural land."
    Must expressly provide for reentry and termination of the estate granted upon breach of the condition.

    Sometimes used with charitable gifts of land.
  5. Fee simple subject to an executory limitation
    "From O to B and his heirs, but if B shall die leaving no surviving children, then to C and his heirs"
    B is given a present fee simple subject to a shifting executory limitation and C holds an executory interest in fee simple
  6. The life estate
    "From O to A for life"
    Is not terminable at any fixed time, other than the life of one or more persons.

    Can be coupled with a remainder interest (form O to A, remainder to B)
  7. The life estate/remainder arrangement
    Contingent remainder "From O to A for life, remainder to the heirs of B" (unborn and unascertained heirs have a contingent remainder interest)

    Vested remainder "From O to A for life, remainder to B (If A is alive and ascertainable, B has a vested remainder)
  8. The life estate coupled with a reversion
    "From O to A for life, reversion to O"
    Ownership interest remaining after conveyance of an interest to another, that becomes possessory upon expiration of the granted interest.

    Most oral ag leases involve reversions (From O to A for one year, reversion to O)
  9. What are the 3 types of deeds
    • General warranty deed
    • Special warranty deed
    • Quitclaim deed
  10. General warranty deed
    Seller warrants against defects arising from any time before the transfer

    Basically says I own this property as a seller, I can convey it to you, and I will defend against 3rd party claims
  11. Special warranty deed
    Warranting after the time the grantor acquired the land (be wary of potential environmental problems associated with real estate)
  12. Quitclaim deed
    "You get what you pay for"

    All this says is "I'm transferring whatever interest I have in the property".

    May be useful for boundary disputes
  13. Easements in gross
    • An easement that serves the holder personally instead of in connection with the holder's ownership or use of a specific parcel of land.
    • utlity company easements
    • street easements
    • railroad easements
  14. When would an easement in gross terminate?
    An easement in gross is a nonassignable personal right that terminates upon death, liquidation or bankruptcy of the holder
  15. Appurtenant easement
    • An easement benefitting a particular tract of land. It becomes a right in the particular parcel and passes with the title upon subsequent conveyance of the land
    • walkways
    • driveways
    • utility lines for a particular parcel
    • water rights
  16. How do you distinguish between easements in gross and appurtenant easements?
    • Facts and circumstances test
    • The preference of courts is for appurtenant easements - passes with title
  17. Affirmative easement
    • Entitles holder to conduct certain activities upon the land subject to the easement
    • The majority of easements are affirmative
  18. Negative easement
    • Gives the holder a right to require the landowner to do or not do certain things concerning the land
    • Synonomous with covenental land restrictuions and similar to "natural rights" that are incidents of land ownership
    • riparian rights, lateral and subjacent support rights, right to be free from nuisances
  19. Do negative easements apply to light, air and view?
    • American law generally does not recognize negative easements for light air & view unless interference is malicious
    • Fontainebleau Hotel Corp v. Forty-Five Twenty-Five Inc. (Eden Roc sought to enjoin Fontainebleau from constructing a 14-story addition)
  20. Profit
    • Allows the holder to remove some substance from another's land, and is typically accompanied by a license
    • License is a permissive land use terminable at will of licensor
    • Not an interest in land and need not be in writing
  21. License
    • Covers broader range of permissive land uses
    • hunter
    • without permission, land use is a trespass
    • license is not an interest in land, only a privilege
    • can be granted orally
  22. Implied easements
    • "Easement by Necessity"
    • Arises when a parcel is severed, resulting in a landlocked parcel, no prior use is necessary
  23. Easement by prescription
    • Open
    • Continuous
    • Exclusive
    • Adverse
    • Notorious
    • Permission eliminates the possibility of acquiring an easement by prescription, acquiesence does not
  24. Termination of Easements
    • Merger
    • Release
    • Estoppel
    • Abandonment
    • Prescription
  25. Release as a termination of easement
    If the easement is for more than one year, the release must be in writing and comply with all the formalities of a deed
  26. Estoppel as a termination of easement
    • Reasonable reliance by owner of burdened estate who changes position based on easement holder's status or conduct
    • Ex: A tells B that A is going to release the easement over B's property. As a result, A doesn't use the easement for a long time, B builds a machine shed over A's easement. A could not reassert the existence of the easement after the machine shed has been built.
  27. Abandonment as termination of easement
    • Easement holder takes some sort of physical action indicating an intent to permanantly abandon the easement.
    • Mere words are inadequate to constitute abandonment
  28. What are the forms of land co-ownership?
    • Tenancy in common
    • Joint tenancy
    • Tenancy by the entirety
    • Community property
  29. Tenancy in common
    • Each tenant owns an undivided interest in the whole
    • Each tenant's interest may be sold or mortgaged
    • Upon death, a tenant's interest passes in accordance with will or by intestacy (heirs)
  30. Joint tenancy (JTROS)
    • Each tenant owns an undivided interest in the whole
    • Each tenant's interest may be sold or mortgaged
    • Upon joint tenant's death, deceased tenant's interest passes to surviving tenant or tenants.
  31. How can joint tenancy be destroyed?
    • By transfer, sale, partition or agreement.
    • Property is then held by owners as tenants in common.
  32. Tenancy by the Entirety
    Special form of spousal joint tenancy
  33. Community Property
    • All property acquired during marriage is owned equally by the spouses
    • Property acquired before marriage remains separate property
    • Gifts and inheritances are also separate property
  34. A township is divided into 36 sections. How big is a section?
    Approximately one square mile, containing 640 acres. Sections start with 1 in the northeast corner
  35. What are 8 elements that should go into a contract?
    • 1. Names of parties and type of ownership
    • 2. Signed writing (unless a lease for less than a year)
    • 3. Legal description of land
    • 4. Selling price and time of payment
    • 5. Real estate taxes
    • 6. Risk of loss
    • 7. Personal property
    • 8. Quality of title and real estate deeds
  36. T/F : A meeting of the minds is not essential for a contract to be considered valid
    • False. Three key elements needed to form a valid contract are offer, acceptance, consideration.
    • Mutual assent is a meeting of the minds.
  37. T/F Article 2 of the UCC governs the sale of goods involving only merchants
    False - It just involves the sale of goods. There are provisions to deal with merchants
  38. T/F Express warranties are either stated in the sales agreement or result from statements or actions of the seller.
  39. T/F The stages of a civil lawsuit include the pleading stage, the discovery and pretrial stage, and the trial and appeals stage.
  40. T/F The UCC has special provisions for goods which are designated as farm products
  41. T/F The judicial principal of stare decisis requires judges to follow precendent established by previous legal decisions
    True - this is important because of appeals
  42. T/F Substantive law consists of three general areas: criminal law, civil law and law of equity
  43. T/F Civil law is when a wrong is committed against society
    • False. That's criminal law.
    • Criminal - burden of proof is higher, beyond a reasonable doubt
    • Civil - proponderence of evidence
  44. T/F The federal courts system contains the following courts: specialty courts, district courts, courts of appeals and the US Supreme Court
  45. T/F Common law is the body of judge-made law that is not provided for in constitutions, statutes or regulations
  46. What is the primary source of all law in the U.S.?
    The US Constitution
  47. T/F Advertisements are usually offers to be accepted
    False. Ads are usually invites to deal
  48. T/F In order to orally disclaim the implied warranty of merchantability, the oral disclaimer must mention "merchantability", "as is", "with all faults", or other similar language.
  49. T/F The implied warranty of fitness for a particular purpose arises when the seller has reason to know of the buyer's particular purpose for buying the goods and the buyer relies on the seller's skill or judgement to select or furnish suitable goods.
  50. T/F The statute of frauds requires that certain contracts must be in writing to be enforceable.
  51. Tort
    A civil wrong or injury
  52. Which is not considered a good?
    A. Hay bale
    B. Unborn animals
    C. Both A and C
    D. Hay barn
    D. Hay barn
    (this multiple choice question has been scrambled)
  53. The definition of a "merchant" would include which?
    A. A young orchard farmer who is just starting out and wants to sell his apple crop.
    B. A turkey farmer that has been in the business of raising and selling turkeys for 23 years and is seeking to enter a production contract.
    C. A landowner who has grown corn for 15 years and recently has switched to rice. He wants to contract for rice.
    D. An insurance agent seeking to sell a used combine inherited from his grandfather.
    B. A turkey farmer that has been in the business of raising and selling turkeys for 23 years and is seeking to enter a production contract.
    (this multiple choice question has been scrambled)
  54. What Amendment provides that the powers not delegated to the US by the Constitution or prohibited by it to the states are reserved to the states or, respectively, to the people.
    The 10th Amendment
  55. The state court of general jurisdiction in Greene County, MO is:
    Circuit Court
  56. Springfield Municipal Court is:
    A specialty court, with limited jurisdiction
  57. Commercial leases are governed by...
    Aritcle 2A of the UCC
  58. Under the UCC, a merchant is one who:
    • Is knowledgeable of the good
    • Knowledge of the good is attributed by an agent or broker
    • Deals with goods of the kind
  59. The primary source for legal research is:
    • Federal and state constitutions
    • (secondary are treaties, state digests, law reviews and journals)
  60. What is the age of majority in most states for purposes of being competent to legally make and enter into contracts?
  61. Under the UCC, an acceptance does not have to be the mirror image of the offer so long as...
    • The person making the offer does not object within a reasonable time
    • and
    • The new terms do not materially alter the contract
  62. In the State of Missouri, which court is considered the one of last resort?
    Supreme Court of Missouri
  63. A lease is
    A contract, a conveyance of an interest in real estate
  64. A buyer that rejects nonconforming goods can:
    • Reject all (within a reasonable time)
    • Accept all
    • Accept part and reject part
  65. The measure of damages for a breach of contract is
    • Difference between market price and contract price
    • Difference between the cost to cover and contract price
  66. Auction sale
    • A bid is an offer to buy
    • The fall of the auctioneer's hammer is an acceptance
    • If a bid is made while the hammer is falling, the auctioneer may reopen the bidding or declare the goods sold
  67. What happens if either the tenant or the landlord dies during the term of an agricultural lease?
    • If the landlord dies, the heirs assume the lease
    • If the tenant dies, the heirs do not assume the lease
  68. What are the chronological steps in a trial
    • If jury, jury selection
    • Opening statements by plaintiff and defense
    • Plantiff's case in chief (plantiff presents its case, defense cross examines, plaintiff redirects)
    • Defense can ask for directed verdict (saying plaintiff did not prove case), if not granted, defense case in chief (same elements as plaintiff's)
    • Closing arguments (plaintiff, defense, plaintiff)
    • Defense can ask for judgement as a matter of law (if jury trial)
    • If no judgement as a matter of law, jury gives verdict
    • If loser doesn't like the verdict, can request a judgement not withstanding the verdict.
    • Losers can appeal
  69. What are the stages of a lawsuit?
    • Pleading
    • Discovery
    • Pre-trial
    • Trial and appeals
  70. Pleading stage of a lawsuit
    • A petition (state) or complaint (federal) is filed with the court, the other party is served with the lawsuit
    • Defendant responds, if no response, a default judgement is made against the defendant
    • If the defendant files an answer, it has to either admit, deny, say not enough info (so deny)
    • Can file a motion to dismiss or file a counter claim
  71. Discovery and Pretrial
    • This is where you find out what the facts are - interogatories (written questions), requests for documents, depositions (sit down interview in front of a court reporter)
    • Can ask for a summary judgement, if both parties agree to the facts and all that's left is a judgement
  72. Does article 2 of the UCC apply to a contract involving both goods and services?
    Yes, if the contract is primarily about the goods.
  73. When would an advertisement not be an invitation to deal?
    When the advertisement is so specific that there is nothing to do but accept. In that case, it's an offer that can be freely accepted. Think genuine alligator boots or the fur coat dude.
  74. What types of contracts must be in writing to satisfy the Statute of Frauds/
    • Marriage
    • Year - contracts of a length of a year or longer
    • Land
    • Executory contract
    • Goods (more than $500 or personal property more than $5,000)
    • Surety contracts
  75. Under the UCC, when is a merchant's firm written offer irrevocable?
    For the time stated or if no time is stated, for a reasonable time (up to three months)
  76. Conditional acceptances under the UCC
    Offeror must agree to the additional conditions
  77. Auction sales without reserve
    • Seller offeror
    • Bidder is offeree
    • Contract is formed when bid is made (subject to a higher bid)
  78. Auction with reserve
    • Bid is the offer
    • Fall of the hammer is acceptance
    • Higher bid can be rejected
    • Auctioneer's discretion when the bid is made during the fall of the hammer
    • Retraction of the bid does not revive previous bids
  79. Merchants Confirmatory Memo Rule
    Unwritten contracts between merchants are enforceable if a writing in confirmation of the contract is received within a reasonable time unless written notice of the objection to the contents of the writing is given within 10 days.
  80. Common lease provisions for crop and livestock leases
    • Names of parties invovled, date the agreement is entered into
    • Rental amount
    • Legal description of property being rented
    • Length and termination of the tenancy
    • When rental amount to be paid and in what amount
    • Any limitations on the tenant's use of the land with respect to particular farming practices
  81. More common lease provisions for crop and livestock leases
    • Whether the landlord or tenant decides to participate in federal farm programs
    • The landlord's right to enter the premises
    • Whether the tenant or landlord determines crops to be planted
    • Types of chemicals to be used/not used and who decides
    • Tenants right to improvements placed on land during the tenancy
  82. Even more common lease provisions for crop and livestock leases
    • Who responsible for hired labor
    • Who responsible for accidents on the leased premises
    • Can tenant hunt and who can give permission for others to hunt?
    • Tenant's rights in event of condemnation of premises
    • Tenants acts that if committed would constitute a default of the lease
    • For livestock, the stocking rate
  83. And still more common lease provisions for crop and livestock leases
    • Who is responsible for control of noxious weeds?
    • Compensation of tenant for permanant improvments
    • Tenant or landlord carries insurance?
    • How amendments or alterations to the lease are made
    • A statement that a partnership between the landlord and the tenant is not to be created by the lease agreement
    • Is subleasing permitted?
    • Maintance and repair of fences - who does?
    • What if fail to perform as required by lease?
    • What if files for bankruptcy (landlord/tenant)?
    • Who purchases crop insurace?
    • Percentage of shares for landlord and tenants if crop share, responsibility for payment of input expenses, who reserves storage space, name under which crops would be stored
  84. The attractive nusiance doctrine applies:
    • To children who are unable to appreciate risk involved with dangerous artifical conditions on another person's land.
    • The key is whether the particular child at issue was capable of understanding the inherent dangers involved
  85. The allurement limitation
    The attractive nuisance doctrine does not apply where the child is already a trespasser on the defendant's land before noticing the object on the land which resulted in harm.
  86. What duties does a landowner owe to a licensee?
    • Afforded slightly higher status than a trespasser
    • Landowner not obligated to make premises safte, should notify of hidden dangers
    • A licensee is anyone on the premises with permission or acquiescence, but does not benefit a landowner (hunters w/ permission who do not pay a fee)
  87. What duties does a landowner owe to a social guest?
    • Social guests enjoy a slightly higher status than a licensee
    • Landowner must exercise reasonable care to maintain the premises (highly waxed floor, poorly lighted stairway, faulty step)
    • Social guest doesn't confer an economic benefit but does confer a social benefit
  88. What duties does a landowner owe to an invitee?
    • Owed the highest duty of care
    • Land owner must make and keep the premises safe and warn of existing dangers
    • Invitees are on the premises for business purposes or for mutual advantage other than solely for the entrant's benefit
    • Milk truck driver, cattle buyer, veterinarian or employee
  89. What is the modern approach to tort liability of landowners and occupiers?
    • It's a movement away from basing liability on the status of the entrant
    • Follows ordinary negligence principles of foreseeable risk and reasonable care
  90. In general, a landlord is not liable for injuries to third parties that occur on premises that are occupied by a tenant. What are some notable exceptions?
    • If landlord conceals dangerous conditions
    • If conditions are maintained on the premises that are dangerous to persons outside of the premises
    • If leased for the admission of the public
    • If landlord retains control over a portion of the premises the tenant is entitled to use
    • If landlord makes an express covenant to repair but fails to do so (also liable for injuries resulting from landlord's negligence in making repairs)
  91. Is a landlord liable for a tenant's acts if the landlord knows the tenant is harming the property rights of adjacent landowners and does nothing?
    Yes. The landlord can be held liable along with the tenant.
  92. What duty of care does a landowner owe to someone who is on the premises for recreational purposes (waters, hiking, picnicking, camping, pleasure driving, etc.) ?
    • No duty to keep safe for entry or use by others for recreational pruposes or to give any warning of dangerous conditions (Model Act)
    • Does not apply if a fee is charged (that converts status to an invitee)
  93. 46 states have equine activity liability acts, generally requiring special language in written contracts and liability releases or waivers; requiring posted signs and an attempt to educate about inherent risks. When, under a typical statute, could someone be sued in tort?
    • For damages related to rovision of faulty tack
    • failure to determine the plaintiff's ability to safely manage a horse
    • or failure to post warning signs re: dangerous latent conditions
    • Recovery for inherent risks is barred and some statutes require the plaintiff to establish gross negligence, willful and wanton misconduct, or intentional wrongdoing
  94. What conditions must be met for a person to be deemed legally negligent?
    • Duty (legal duty giving rise to a standard of care)
    • Breach (did conduct fall shot of the conduct a reaonable and prudent person under the circumstances?)
    • Causation (the resulting harm to the plaintiff must have been reasonably forseeable result of the defendant's conduct at the time the conduct occurred.)
    • Damages
  95. Negligences and GMOs. Can farmers planting GMOs be subjected to tort claims based on negligence?
    • Yes - duty to prevent contamination
    • Breach of duty
    • Beach of duty caused damages (damages were reasonably foreseeable)
  96. Defending negligent torts. What happens if the plaintiff was also negligent?
    • Contributory negligence: if the plaintiff was also negligent (to any degree, recovery is barred)
    • Comparative fault (approx. 40 states): A plaintiff can recover if the plaintiff's fault is not greater than the defendant's comparative fault. (Judgement reduced in proportion to plaintiff's negligence)
  97. Defending negligence torts. When does assumption of risk apply?
    A person is aware of the danger yet continues to maintain exposure to that danger and injury results
  98. What are some special situations to negligence?
    • Guest statutes
    • Good Samaritan laws
    • Bailments
    • Manufacturer's liability
    • Last clear chance to avoid injury
  99. Guest statutes
    • An owner or operator of a motor vehicle is typically excused from liability for injuries suffered by nonpaying guests riding with the driver
    • Exceptions: driver is intoxicated or reckless
  100. Rendering aid to persons in peril
    • No legal requirement to render aid
    • One aid begins, duty is to continue until a replacement comes or the aid otherwise becomes unnecessary
    • Person rendering aid usually only liable for injuries resulting from willful intent or recklessness
  101. Bailments (one individual borrows another's property). If an injury results, liability depends on the type of bailment at issue. Generally speaking, what standard of care is the borower (bailee) owed?
    • If a benefit is derived from the loan, slight negligence
    • If the bailee undertakes safekeeping, gross negligence
    • Ordinary care when both parties benefit
  102. Historically, was a manufacturer or seller of defective chattles liable to persons injured using the product?
    • Not unless a contractual relationship existed.
    • Manufacturer's liability to immediate purchasers for products determined to be defective, dangerous or hazardous to health
    • (privity limitation)

    1916, MacPherson v. Buick Motor Co., marked beginning of consumer movement and shift from privity of contract
  103. What 5 elements are needed for an injured party to recover on a product liability claim?
    • 1.Defendant sold the product and was engaged in the business of selling the product
    • 2. Product was in defective condition
    • 3. Defective condition was unreasonably dangerous to an ordinary user during normal use
    • 4. Product was expected to and did reach the user without substantial change in condition
    • 5. Product proximately caused plaintiff's injury
  104. 3 situations that may limit the ability to sue a manufacturer on a product liability claim:
    • Situations involving damage to a person or property resulting from the use of pesticides
    • Multiple component parts that are purchased individually but are later combined
    • Economic loss doctrine
  105. What does the FIFRA pre-emption do?
    • Federal Insecticide Fungicide and Rodenticide Act
    • It's illegal to use any registered pesiticide in a manner inconsistent with its labeling
    • Limites ability of injured parties to sue pesticide manufacturers on inadequate labels or failure to warn
    • Does not pre-empt actions based on defective products
  106. Economic loss doctrine
    Tort claims are barred if they are not based on physical injury to persons or property (mere economic loss without physical injury to other property or persons is not enough for a product liability claim)
  107. If a product defect only damages the product itself, or makes the product useless, does it fall under product liability law?
    • No. When a product injures itself, the loss can be recovered through insurance.
    • Contract-based damages - the question is what the purchaser contracted for - if what was purchased was insured, the insurace company is liable for the loss
  108. Last clear chance to avoid injury
    Imposes a duty upon one party to exercise care in avoiding injury to another party who has negligently placed themself in danger
  109. Strict liability
    • Some activities are so dangerous that a showing of negligence is not required to obtain recovery
    • Wood v. Groh - gun owners will be held strictly liable for any injuries caused by usage of the guns they own
  110. Wild animals
    • Strict liability for any damages that the animals cause to other persons or their property
    • Hard-hoofed domesticated animals with known vicious propensities
    • In general, dogs are entitled to their first bite before they are considered dangerous. If a dog owner knows dog is dangerous, first bite rule doesn't apply.
  111. Mantainting dangerous conditions on property
    • Strict liability rule applies for activities or conditions that are unreasonably dangerous and cause injury or damage to other persons or their property
    • Use of explosives
  112. Unnatural land uses is limited to ultrahazardous activies. Examples?
    • Storage of water in large quantities
    • Storage and use of explosives
    • Blasting operations
    • Pile driving
    • Drilling oil wells in densely populated areas
    • Crop dusting
  113. Nuisance
    • An invasion of an individual's interest in the use and enjoyment of land rather than an interference with exclusive possession or ownership of the land.
    • Landowners have the right to use and enjoy property free of unreasonable interference by others
    • Landowners must use property so as not to injure adjacent owners
  114. What are the two primary issues in every ag nuisance dispute?
    • Whether the use alleged to be a nuisance is reasonable for the area
    • Whether the use alleged to be a nuisance substantially interferes with the use and enjoyment of neighboring land
  115. You operate a farm properly and have all the requisite permits. Can you still be a nuisance?
    If a court or jury determines the activity unreasonable and causes a substaintial interference with another person's use and enjoyment of their property.
  116. What factors should be considered in determining a nuisance?
    • Whether use complained of is common to the area
    • Whether the activity is a minor inconvenience or is a regular and continuous activity
    • The nature of the property
    • Whether the activity substainially interefers with the plaintiff's land use
    • Whether the activity is vital to the local economy
    • Whether the complained-of use pre-dates the plaintiff's use
  117. How can courts remedy a nuisance situation?
    • Award monetary damages
    • Issue an injunction (order the defendant to cease the offending activity - can be temporary or permanent)
  118. Private nuisance
    • A civil wrong based on a disturbance of rights in land for which a remedy lies in the hands of the individual whose rights have been disturbed
    • Plaintiff must have clean hands
  119. Public nuisance
    An interference with the rights of the community at large with the remedy lying in the state's hands
  120. Nuisance per se
    • A nuisance as a matter of law (such as by statute) under any circumstance
    • Not many of these
  121. Nuisance per accidens
    An activity that becomes a nuisance because of surrounding circumstances
  122. Potential defenses against nuisance actions
    • Priority of location and reasonableness of operation are key
    • Right to farm laws
    • (farmers and ranchers satisfying legal requirements have a defense to nuisance actions. Unfair to move to ag area and ask court to declare farm nusiance)
  123. What are the two kinds of warranties?
    • Express warranties - stated in sales agreement
    • Implied warranties - result from statements or actions of the seller
  124. How can an express warranty be created?
    • 1. Seller makes an affirmation of fact or promise that relates to the goods and becomes part of the basis of the bargain (oral or written)
    • 2. Seller provides any description of the goods that becomes part of the basis of the bargain.
    • 3. If seller displays a sample or model of the goods.
  125. Implied warranty of merchantibility
    • Applies to sales made by merchants who deal in goods of the kind sold
    • Exists even if the seller made no statements or promises and did not know of any defect in the goods.
  126. Implied warranty of merchantibility. In order for goods to be merchantable what do they need to be?
    • 1. Pass without objection in the trade
    • 2. In the gas of fungible goods, are of fair average quality within the description
    • 3. Are fit for the ordinary purposes for which such goods are used
    • 4. Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved
    • 5. Are adequately contained, packaged and labeled as the agreement may require
    • 6. Conform to the promises or affirmations of fact made on the container or label if any
  127. Implied Warranty of Fitness for a Particular Purpose
    Goods that are fit for the buyer's particular purpose. The seller has reason to know of the buyer's particular purpose for purchasing the goods and the buyer relies on the seller's skill or judgement to select or furnish suitable goods.
  128. What are three ways a warranty of merchantability can be disclaimed?
    • 1. Oral disclaimers of implied warranties of merchantability must use the word merchantability and in written disclaimers, the disclaiming language must be conspicious within the written document.
    • 2. Buyer, before entering the contract, examines the goods as fully as desired or refuses to examine the goods
    • 3. By course of dealing, course of performance or usage of trade
  129. Can an implied warranty of fitness for a particular purpose be disclaimed orally?
    No, it must be in writing.