In an action upon implied warranty, there are several defenses that a warrantor may assert to defend against a claim for breach of implied warranty. For example, to establish a cause of action for breach of an implied warranty a consumer must prove that there was a defect in the product. Therefore, a defendant may assert a defense of no defect. Additionally, under the Magnuson-Moss Warranty Act, an implied warranty refers to an implied warranty arising under state law, therefore, since Florida law requires privity for a claim of breach of implied warranty, the plaintiff must establish privity of contract between the plaintiff and the defendant. For example, a lack of privity between the buyers of a used car and a car manufacturer precludes the buyers' claim for breach of implied warranty. However, the doctrine of strict liability will allow a cause of action for breach of an implied warranty to exist, regardless of privity between the parties. For example, if a plaintiff is injured by a defective product, and there is no contractual relationship with a manufacturer, strict liability will allow the implied warranty to remain.

Moreover, a defendant may assert that an implied warranty is either excluded or modified by the words or conduct used to create the warranty. That is, words or conduct relevant to the creation of a warranty and words or conduct tending to negate or limit a warranty must be construed wherever reasonable as consistent with each other, but subject to the provisions on parol or extrinsic evidence. Therefore, to exclude or modify the implied warranty of merchantability or any part of it, the language must mention "merchantability," be in writing and be conspicuous. To exclude implied warranties of fitness, the language should be conspicuous and state, "there is no warranty that the goods will be fit for a particular purpose." Generally, all implied warranties are excluded by language such as "as is" or "with all faults." An implied warranty may also be excluded or modified by parties conduct, such as, the course of dealing, course of performance, or usage of trade.

A cause of action for breach of an implied warranty under the Magnuson-Moss Warranty Act, may have many complex issues. Therefore, you should consult an experienced West Palm Beach breach of warranty lawyer, call Sharmin & Sharmin P.A. at 1-800-74-TRIAL.