Skip NavigationSmall Claims Court: Consumer and Substantive Laws




 




§7.13 Consumer Warranty Act—Express and Implied Warranties

 
Lesson 7:
Consumer
Protection
& Warranties

The following key provisions of the Act apply to consumer sales and leases:

  • Consumer goods: any new product or part of a product that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. [CC §1791(a).] A used product is also included if the seller or distributor gives an express warranty. [CC §1795.5.] E.g., a buy-here-pay-here dealer of used vehicles must provide a written warranty to a buyer or lessee. [CC §1795.51(a).]

  • Express warranty: a written statement that arises out of the retail sale of consumer goods by which the manufacturer, distributor, or retailer promises to preserve or maintain the utility or performance of the goods or to provide compensation if there is a failure in utility or performance. [CC §1791.2(a).] In the case of used consumer goods sold at retail with an express warranty, the distributor or seller making the warranty (and not the original manufacturer or the original seller) is obligated to fulfill it, and generally has the same obligations as a manufacturer of new goods making an express warranty. [CC §§1795, 1795.5.] A seller, manufacturer, or distributor may make express warranties, but may not then limit, modify, or disclaim implied warranties. [CC §1793.]


  • Tip Click


  • Implied warranties: The following warranties are implied by operation of law and create a buyer’s rights and a seller’s or manufacturer’s obligations in addition to those under any express warranty.

    • Warranty of merchantability: an implied promise that the product is fit for the ordinary purposes for which it is used (e.g., “This car is fit for transporting passengers”). It also means that the goods pass without objection in the trade, are adequately contained, packaged, and labeled, and conform to the promises or affirmations of fact made on the container or label. [CC §1791.1(a).] Unless properly disclaimed, every retail sale of new consumer goods (except clothing and consumables) is accompanied by the manufacturer’s and retail seller’s implied warranty of merchantability. [CC §1792.] This warranty also exists in a retail sale of a used product in a transaction in which an express written warranty is given. [CC §1795.5.]

    • Warranty of fitness for particular purpose: an implied promise that the product is fit for the particular purpose of the buyer (e.g., “This paint will adhere to the sample surface you provided”). It arises only if the manufacturer, seller, or both have reason to know that the goods are required for a particular purpose and that the buyer is relying on its skill and judgment. [CC §§1791.1(b), 1792.1, 1792.2.]


  • Duration of implied warranties:


    • New products: implied warranties generally have the same duration as an accompanying express warranty, but may not be less than 60 days or greater than one year; if an express warranty does not state a duration, an implied warranty exists for one year. [CC §1791.1(c).]

    • Used products: implied warranties generally have the same duration as an accompanying express warranty, but may not be less than 30 days or greater than three months; if an express warranty does not state a duration, an implied warranty exists for three months. [CC §1795.5(c); see, e.g., CC §1795.51(a) (minimum 30-day warranty based on delivery date or odometer reading).]

  • Tolling: Express and implied warranties are tolled while nonconforming goods that sold for $50 or more undergo repairs. [CC §1795.6(a).]

  • Statute of limitations: The four-year statute of limitations under UCC §2725 applies to an action for breach of warranty under the Song-Beverly Act; the provisions governing the duration of implied warranties do not establish a statute of limitations. [Mexia v Rinker Boat Co., Inc. (2009) 174 CA4th 1297, 13051306.]

  • Implied warranties disclaimer: To avoid the implied warranties imposed by the Act—which is only permissible when no express warranty is given—the new goods must be sold on an “as is” or “with all faults” basis. [CC §§1791.3, 1792.3.] The goods sold on an “as is” or “with all faults” basis must bear a conspicuous notice advising the buyer of the risks involved (e.g., that the buyer bears the entire risk as to quality and performance and the cost of servicing or repair) in order for the implied warranties to be disclaimed. [CC §§1792.4–1792.5.] These notices must be attached to the goods to be effective. Since the Act does not apply to sales of used products when no express warranty is given, the provisions on disclaimer in the cited sections apply only with respect to sales of new products.


 
 
    back        Back         page 82 of 100         Next        next