1. True or False: In order to create an express warranty, the seller must use words such as "warranty" or "guarantee."

    -----see 2-313 (2)

3. True or False: An express warranty can only be created where the seller is a "merchant" (i.e., no "casual sales")

    -----2-313 (1) says "seller" rather than "merchant" (which we'll see later is used in implied warranties)

4. Vermont's UCC identifies the three ways in which an express warranty can be created. What are they?

Questions 5-11  relate to the following facts:

George is selling his used car. He puts an ad in the paper that reads as follows: "1995 Honda Accord, 67,000 miles, mint condition, rebuilt engine, runs great, never been in an accident, $7,000." He also puts a sign in the car's window with just the price and his phone number. Martha sees the newspaper ad and goes to see the car. She notices a large dent in the fender but makes no mention of it. Martha buys the car. Within a short period of time, Martha has engine problems and has to replace it. She also discovers that although the odometer does read 67,000 miles, when the vehicle was inspected six months earlier it had over 100,000 miles. She sues George for the cost of the replacement engine and labor, the difference in value due to the mileage discrepancy and the cost of repairing the dent. Her "cause of action" is breach of express warranty.

5. Which statements in George's ad constitute "affirmations of fact or promise" that might constitute the first element of an express warranty?

    -----pretty much everything but the price

6. Among those statements, which do you believe do create an express warranty? Why?

    -----all but perhaps "mint condition" and "runs great"
    -----under 2-313 (2) are probable opinion or "commendation"

7. Would your answer to #6 be different if George was a used car dealer and Martha didn't know much about cars?

    -----perhaps
    -----lends strength to argument that they're statements of fact
    -----Vermont case, Taylor v. Alfama, held that "mint condition with a rebuilt engine" was an express warranty that the engine ran well

8. Assume the ad didn't disclose the mileage. Would there still be a warranty related to the mileage?

    -----yes; the vehicle's odometer creates an express warranty

9. Would your answer to #6 be different if Martha had not seen the ad but instead had responded to the sign in the car window?

    -----yes
    -----elements are missing; go back to 2-313 (1) (a)
       -----not made "by the seller to the buyer"
       -----not "part of the basis of the bargain"

10. Assume that George is a used car dealer and in his ad claims he's been in business for 20 years, when in fact he's only been in business a few months. Is this another warranty that George has breached?

    -----no; doesn't "relate to the goods" (2-313 (1) (a)
    -----this is where breach of warranty is narrower than misrepresentation (not any material fact will do)

11. What are Martha's chances of recovering the cost of repairing the dent in the fender?

    -----not good
    -----not "part of the basis of the bargain"
    -----like reliance in common law fraud

13. Same facts fas #12, except that Victor chose and ordered the snowblower from the department store website. If he sues, it will be for warranty
a. by description
b. by sample
c. by model
d. none of the above; there was no affirmation of fact or promise" and thus no express warranty

    -----see sec. 3 of lecture notes
    -----overlaps with affirmation of fact or promise
    -----often arises in context of brochures/pamphlets
    -----also arises in context of TV ads (e.g., truck driving over mountain of cement blocks)

14. The implied warranty of merchantability
a. only applies where the seller is a merchant
b. arises automatically, without an language or conduct by the seller
c. guarantees that goods meet certain minimum standards of quality
d. all of the above are true

    -----2-314 (1) and 2 (c)
    -----lecture notes sec. 6

15. When deciding whether the implied warranty of merchantability has been breached, the court will ask the following question(s):
a. what are the ordinary purposes of these goods?
b. are these goods adequate for their ordinary purposes?
c. both of the above
d. none of the above

    -----what's the ordinary purpose of a dishwasher? Toaster? Car?

16. The following questions relate to the Vermont Supreme Court decision in Tracy v. Vinton Motors
a. what was the defect? Peeling paint
b. did the defect breach the implied warranty of merchantability? No
c. why or why not? doesn't affect the "operative essentials"; implied warranty doesn't guarantee perfection in every detail

17. Same questions for the Wisconsin Supreme Court decision in Taterka v. Ford Motor Company

    -----rusting around rear lights
    -----no
    -----vehicle had been driven 90,000 miles at the time of trial

Address Subaru rusty feders and cv joint cases here

18. Three summers ago you went to a shoe store, bought a pair of comfortable running shoes, and set off on an end-to-end trek on the Long Trail.  Unfortunately, you didn't get very far before the shoes fell apart.  Was there a breach of warranty? If so, which one(s)?

    -----Express? Not based on facts (no affirmation of fact or promise; no description (e.g., ad), sample or model)
    -----Merchantability? What's the ordinary purpose of running shoes? Are these fit for that purpose?
    -----Fitness for a particular purpose (see sec. 2-315)
       -----Does seller know your purpose?
       -----Did you rely on seller to select the shoes?

19. Two summers ago you tried again, but this time you went to an outdoor outfitter and picked a pair of sturdy-looking hiking boots that you had seen in a magazine ad being used for strenuous hiking. Unfortunately, these fell apart after only a few days. Was there a breach of warranty? If so, which one(s)?

    -----Express? Yes. The ad created an express warranty
    -----Merchantability? Yes. Ordinary purpose? Were they fit for that purpose?
    -----Fitness? Not in facts.

20. Last summer you went to yet another outdoor outfitter and this time you told the saleswoman what you wanted to do. She recommended a specific brand of boots. Based on her advice you bought the boots. They fall apart within a few days as well. Was there a breach of warranty? If so, which one(s)?

    ----All three this time!

21. Language in a contract such as "as is" and "with all faults" can be used to disclaim
a. an express warranty (under federal law, impossible to disclaim express warranty)
b. an implied warranty of merchantability (2-316 (2)) must mention merchantability
c. an implied warranty of fitness (2-316 (3) (a))
d. all of the above

22. True or false: In Vermont, disclaimers and other limitations on warranty protection are not enforceable with respect to new consumer goods.