Have you ever been told by car salesman that a particular car is the “safest in its class” or when shopping for a new television that it’s “top of the line” and “the best on the market?” Have you ever wondered whether you can legally rely on this information when making a purchase? Well in some instances you can.
For example, the U.S. Court of Appeals for the 4th Circuit held that there was an express warranty for the fitness and safety of a lawnmower after a salesman told a customer that the particular lawnmower was safe to use at the customer’s house which had numerous hills. Klein v. Sears Roebuck and Co., 773 F. 2d 1421 (4th Cir. 1985). Moreover, the DC Court of Appeals has held that a customer could return a used car, because an express warranty as to its condition was created when the salesman said that “his company did not sell trash.” Moore-Day Motors, Inc. v. Wright, 102 A.2d 304 (D.C. App. 1954). The issue whether an express warranty is created based upon what the salesman say turns on whether it what a fact that the seller relied upon or whether the statement was merely an “opinion” or sales “puffery.”
It may be difficult to determine whether or not assertions made by an individual selling you a good is a “fact,” to which they are contractually bound, or just an “opinion.” For this reason, the Uniform Commercial Code, an almost universally accepted code which was designed to homogenize the laws of commercial transactions, includes a provision which states that an “affirmation of fact or promise made by the seller to the buyer, which relates to the goods and becomes part of the basis of the bargain, creates an express warranty that the goods shall conform to the affirmation or promise.” UCC § 2-313 (2)(a). In other words, if the person selling you something makes a factual assertion to you, which relates to the good he or she is selling you, and which becomes an essential part of your decision to proceed with the transaction, then the factual assertion becomes an expressed warranty to which he is contractually bound.
However, this concept leaves us asking a different question: what constitutes an “opinion” or a “fact”? In general, a statement made by a seller is regarded as a “fact” when he affirms something about which the buyer is ignorant and where the seller has specialized knowledge or expertise about the product. On the other hand, in situations where both the seller and buyer are on equal footing to assert an opinion about the good, an affirmation is generally regarded as an “opinion.” Put differently, when a seller makes an affirmation about which he has no special knowledge, it may be regarded as an “opinion.”
The seller is, however, allowed some leeway to exaggerate with regard to his opinions about the product without creating an express warranty. This is termed “puffery” and determining whether these sales tactics are to be regarded as “facts” requires the courts to weigh, “the conjectural, contingent or qualified nature, or the generality or specificity of the words used in the seller’s alleged affirmation.”
The method that a seller uses to communicate information about a product is also informative as to whether or not he has made an assertion of “fact” or “opinion.” Generally, a seller’s slogan is regarded as calling attention to the product and is not considered to create an express warranty. However, courts have held that affirmations contained in advertisements or promotional materials which go beyond “puffery,” may create an express warranty.
If you have purchased a defective productive or had misrepresentation made to you regarding a purchase, please contact the lawyers at Basyuk & Klaproth, LLP to learn more about your potential remedies.
