Chapter 30: Gap FillingImplied Promises Re the Nature and Quality of Goods

Default Rules: UCC uses to gap fill for terms missing from parties K
warranty provisions that give effect to parties actual bargain-in-fact agreement and default
warranty provisions when there is no effective agreement
Express Terms
UCC 2-313: Express Warranties are created through promise, affirmation, description, or
providing a sample; which are generally presumed to be part of basis of the bargain, absent
evidence to the contrary
More than opinion or puffery

Merchantability
UCC 2-314: Focus more on the general perceptions quality of generic goods, merchantability
must be at least:
1. Pass w/out objection in the trade
2. Fungible goods must be at least average quality
3. Fit for ordinary purposes
4. Variations must be within quality/quantity permitted by agreement
5. Adequately contained, packaged, labeled as per agreement
6. Conform to label on package, if any
Ex: K says nothing about quality. US grades quality as 1-5, any color, and any 1-5
grade is considered merchantable.
o If seller delivers Grade 5 still merchantable

Fitness for Particular Purpose

UCC 2-315: Buyer is presumed to be responsible for extraordinary uses, UNLESS buyer can
establish:
1. Seller is aware of Buyers use
2. Buyer relied on seller to select good appropriate for that particular use
Disclaimers
UCC 2-316(1): Seller cannot disclaim an express warranty under 2-313 nor can
parol/extrinsic evidence be used to disclaim/limit express warranty
UCC 2-316 (2) and (3): However, any implied warranty 2-314 and 2-315 can be
modified/excluded by seller, as per below standards:
o 2-316 (2): Implied warranties can be excluded/modified
Merchantability: doesnt need a writing, but must mention merchantiblity and if
in writing, must be conspicuous
Fitness for Particular Purpose: must be in writing and conspicuous
o Ex: There are no warranties which extend beyond the description on the
face thereof
o 2-316 (3): However, buyer can still be precluded from asserting any warranty if:
a) All implied warranties are excluded by expressions like as is, with all faults, or
other language with a common understanding that there is no implied warranty
b) If buyer before entering K examined goods/sample/model OR refused to examine the
goods there is no implied warranty to any such defects
c) Implied warranty can also be excluded/modified by course of dealing or course of
performance

Cumulation/Conflict of Warranties
2-317: When multiple provisions, expressed/implied warranties will be construed as consistent
w/ each other and cumulative; unless construction is unreasonable then the intention of the
parties will determine which warranty is dominant. Intention is determined by:
o Technical/exact specifications <over> an inconsistent sample/model or general
language of description
o Sample from existing bulk <over> inconsistent general language of description
o Express warranties <over> inconsistent implied warranties other than implied warranty
of fitness for particular purpose

CISG

Similar to UCC but warranties has a different connotation that is more universally understood
requires seller to deliver conforming goods