Breach of Warranty : Breach of Implied Warranty of Merchantability and Fitness
Implied warranties of merchantability or fitness exist in a lease contract, and warrant that the goods will be merchantable and fit for a particular purpose. To be merchantable, goods must:
Pass without objection in the trade under the description in the lease agreement;
In the case of fungible goods, are of fair average quality within the description;
Are suitable for the ordinary purposes for which the goods of that type are normally used for;
Run within the variation permitted by the lease agreement, of even kind, quality, and quantity within each unit and among all units involved;
Are adequately contained, packaged, and labeled as the lease agreement may require;
Conform to any promises or affirmations of fact made on the container or label;
An implied warranty of merchantability provides only a minimum of quality, and is not a guarantee that the expectations of the lessee will be realized. The implied warranty of merchantability is to be liberally construed in favor of the lessee. Under the theory of breach of implied warranty of merchantability or fitness for ordinary use, the lessor is liable for defects in the product leased, especially if created by the lessor or the lessor has knowledge of the defect. A description of the equipment in a lease, which serves merely to identify, does not create an implied or express warranty that the product will perform to the customer's satisfaction.
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, and to exclude or modify any implied warranty 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.
Implied warranties of fitness and merchantability apply to a sales contract for a condominium. For instance, if the sales contract expressly warrants that the developer will correct all defective work for less than the statutory warranty period, but does not expressly disclaim any alternative form of warranty, the buyer is not precluded from bringing any action for a breach of the implied warranty of fitness. Further, an individual unit owner can maintain a claim for construction defects in common areas of the condominium against the builder and the developer. Also, where a condominium developer impliedly agrees to build the condominium units in compliance with the condominium's restrictive covenants, the owners may bring a cause of action against the developer based on a violation of the condominium covenants and restrictions. Additionally, an implied warranty of fitness arising from a condominium construction contract applies to defects that occur during the lifetime of a warranty, which is three years from the date of completion of construction
of the condominium or improvement.
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.
Library for Breach of Implied Warranty of Merchantability and Fitness:
- Establishing a Cause of Action for Breach of Implied Warranty of Merchantability and Fitness
Description: West Palm Beach breach of warranty lawyer | Call Sharmin & Sharmin P.A. at 1-800-74-TRIAL.