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Breach of Implied Warranty

Breach of Warranty : Breach of Implied Warranty

Warranties, whether express or implied, must be construed as consistent with each other and as cumulative, but if that construction is unreasonable, the intention of the parties determines which warranty is dominant.  Therefore, in order to understand the intention of the parties, the following rules should be applied:

  • Exact or technical specifications displace an inconsistent sample or model or general language of the description;

    A sample from an existing bulk displace an inconsistent sample or model or general language of description;

    Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. 

    Additionally, 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.

    However, when an implied warranty is not excluded and is breached by a supplier, warrantor, or service contractor, a consumer should consult an experienced West Palm Beach breach of warranty lawyer, and commence a cause of action for breach of implied warranty. The plaintiff may seek damages and other legal and equitable relief in any court of competent jurisdiction, if the plaintiff has sought an informal dispute-resolution procedure previously, or if the defendant has been given a reasonable opportunity to cure the breach. A cause of action for breach of warranty under the Magnuson-Moss Warranty Act (the Act), is limited to claims for direct damages, thus, consequential damages and personal injuries are not recoverable under the Act.  However, if a defendant violates the provision of the Act prohibiting disclaimers of implied warranties or seeks to limit the duration of implied warranty coverage in a warranty purporting to be a full warranty, the consumer may sue the defendant for personal injury for a violation under the Act.

    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.

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