Key Takeaways

  • Express warranties are promises made by sellers or manufacturers, either written or verbal, about the quality or performance of a product.
  • They are governed by both the Magnuson-Moss Warranty Act and Uniform Commercial Code (UCC) §2-313.
  • Express warranties can arise from affirmations, promises, product descriptions, or product samples.
  • Breach of an express warranty entitles the buyer to remedies like repair, replacement, or refund.
  • Unlike express warranties, implied warranties arise automatically by law based on the nature of the sale.

To understand the express or implied warranty definition, you first need to understand what warranties are. A warranty is, generally, offered by a manufacturer or seller of a product. Warranties are typically made in writing and there is also such a thing known as an express warranty. An express warranty does not have to be in written form to be considered legit.

Which Entities Govern Warranties?

The Magnuson-Moss Warranty Act governs written express warranties. It is a federal law and is recognized in several states. This act outlines a variety of requirements that must be included in written warranties, such as disclaimers and limitations. The Federal Trade Commission is the entity that issues certain regulations that are protected by the Magnuson-Moss Act. The Act doesn't in any way limit a consumer's rights according to state law, neither does it limit remedies.

It's also worth noting that express warranties are governed by the Uniform Commercial Code (UCC) as well. The UCC was not meant to provide protection over the rights of consumers. Instead, its purpose is to protect transactions that take place between merchants. The protection offered by the UCC is usually viewed as being fairly low.

Legal Requirements for Express Warranties

Under UCC §2-313, an express warranty is created when a seller makes any affirmation of fact, promise, description, or provides a sample that becomes part of the basis of the bargain. This means that even informal statements or marketing materials may legally constitute an express warranty if they influence the buyer’s decision. Importantly, sellers cannot disclaim an express warranty if it was explicitly made during the transaction.

Additionally, the Magnuson-Moss Warranty Act governs consumer product warranties at the federal level, requiring that written warranties be clearly and conspicuously presented. Sellers must disclose whether a warranty is "full" or "limited" and provide consumers with key details about the warranty's scope and limitations.

What Is an Express Warranty?

An express warranty is a promise made by a seller or manufacturer. It is usually written in statement form, however, it can come in verbal form too. For example, an auto dealer may make an express warranty to provide all maintenance on your car for a period of three months after you purchase it. Although this warranty can come in verbal form, it is usually in the best interest of the consumer to obtain it in written form.

Express warranties are commonly seen in advertisements. Take for example, you see an advertisement that states a piece of clothing is made purely of 100 percent cotton. If you purchase the shirt and discover it's not made entirely of cotton, this means the warranty has been breached and the seller needs to remedy the problem.

How Express Warranties Are Created

An express warranty can arise in several ways:

  • Affirmation of Fact or Promise: Any statement from the seller about the product's quality or performance that forms part of the sales agreement.
  • Description of the Product: Product descriptions or specifications provided at sale may constitute an express warranty.
  • Sample or Model: Providing a sample or model that sets expectations about the final product's characteristics.

For example, if a car dealer says, “This car gets 40 miles per gallon,” or shows a fuel economy sticker stating the same, that statement could form an express warranty if relied upon by the buyer.

Express warranties do not require the word "warranty" or "guarantee" to be valid—they can be created even by informal statements if they promise something specific about the product.

How Do Express and Implied Warranties Differ?

There is a difference between an express warranty and an implied warranty. Express warranties can come in written or verbal form. Implied warranties are automatic and provide protection to consumers when goods have a value that exceeds a certain amount. This protection for the consumer is considered a base level of protection.

The purpose of an express warranty is to guarantee that the product or service being sold will meet a certain quality standard. More so, that the product or service will be reliable.

Limitations and Disclaimers of Express Warranties

While implied warranties can sometimes be disclaimed by sellers using specific language like “as is” or “with all faults,” an express warranty generally cannot be disclaimed if it was explicitly stated during the transaction. Courts will prioritize written or verbal express promises over general disclaimers.

However, an express warranty does not cover:

  • Statements of Opinion or Puffery: General sales talk such as “This is the best car on the market” is not enforceable as a warranty.
  • Post-Sale Statements: Claims made after the sale is complete typically do not create an express warranty.

Example of a Verbal Express Warranty

An example of a verbal express warranty is when an auto salesperson informs a customer that "the engine in this car will last at least another 125,000 miles." If the customer purchases the car and the engine doesn't last for another 125,000 miles, the buyer can then contact the seller and ask for a remedy. As stated before, though, verbal warranties are sometimes hard to prove in a lawsuit.

Enforcing an Express Warranty

If a seller breaches an express warranty, the buyer may pursue remedies under UCC §2-714, including:

  1. Repair or Replacement: The seller may be required to fix or replace the defective product.
  2. Refund: If repair or replacement isn’t possible, the buyer may seek a refund of the purchase price.
  3. Incidental and Consequential Damages: Buyers may recover additional costs caused by the warranty breach, such as the cost of hiring someone else to fix the problem.

To enforce an express warranty, buyers should retain all documentation, advertisements, product descriptions, and receipts. Written warranties are easier to prove in court, but oral warranties can also be enforced with supporting evidence like witness testimony.

What Is an Implied Warranty?

Implied warranties are unlike express warranties in that they arise from the circumstance of the sale being made or they stem from the actual sale itself. They come in two forms:

  • An implied warranty of merchantability
  • An implied warranty of fitness for a particular purpose

An implied warranty of merchantability outlines how a product must perform in a reasonable manner according to the purpose that it was designed to achieve. An implied warranty of fitness, however, states that a product will meet the specific needs of a customer. It's important to understand that the purpose for which a product was designed may not always be why a consumer purchases it. His or her reason for using the product may differ from its original intended purpose.

When a seller makes an implied warranty of fitness for a particular purpose, this means he or she understands the intended use of the product by the consumer. Knowing this type of information is not required when a seller makes an implied warranty of merchantability. For example, if a customer comes into a jewelry shop and says he wants to buy a watch that will perform well while scuba diving at a depth of 50 feet in the water, then the jeweler can make an implied warranty of fitness for a particular purpose by stating the watch will perform well in this depth of water.

Express Warranties and Consumer Protection Laws

Consumer protection laws bolster the enforceability of express warranties by requiring transparency and fairness in warranty disclosures. Under the Magnuson-Moss Warranty Act, sellers must:

  • Clearly state warranty coverage in plain language.
  • Provide warranty documentation prior to purchase if requested.
  • Outline the steps consumers must follow to obtain warranty service.

In some states, additional protections may apply, preventing sellers from limiting express warranty rights beyond federal requirements.

Frequently Asked Questions

  1. What qualifies as an express warranty?
    Any promise, statement of fact, product description, or sample that influences the buyer’s decision can qualify as an express warranty.
  2. Can a seller disclaim an express warranty?
    Generally, no. Once an express warranty is made, it cannot be disclaimed by the seller if it formed part of the sales agreement.
  3. Are advertisements considered express warranties?
    Yes, if an advertisement makes specific factual claims about a product, it may be treated as an express warranty if a buyer relies on it.
  4. What happens if an express warranty is breached?
    The buyer may be entitled to a repair, replacement, refund, or damages, depending on the situation and applicable laws.
  5. Do express warranties have to be written?
    No. Express warranties can be written or verbal, though written warranties are easier to prove in disputes.

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