Teaching Assistants: Professor Brain on the Implied Warranty of Fitness for a Particular Purpose

I have long struggled teaching the implied warranty of fitness for a particular purpose (IWFPP)  The cases that I teach in which it appears all feature express warranties.  The IWFPP adds nothing but doctrinal confusion, because once students learn of its existence, they feel duty-bound to raise it in every warranty fact-pattern.  And who can blame them?  How is one to know when a buyer has a particular purpose?  What counts as communication of that particular purpose to the seller, and what counts as reliance?  Professor Robert Brain (right) has laid out the problem well in The Unnecessary Implied Warranty of Fitness for a Particular Purpose.  After tracing the origins of the IWFPP, the article proposes that it be eliminated and that the UCC section on express warranties be amended to include situations that currently give rise, arguably, to an IWFPP.  I concur.

After an introductory Part I, Professor Brain in Part II shows how the situations in which the IWFPP arise are very similar to the situations in which an express warranty arises.  The differences just go to which party (buyer or seller) utters what words, but the substance of the agreement is the same.  There is no need for two different warranties to cover the same situation.  Moreover, as Professor Brain notes in the introductory section, unlike express warranties, which can be limited but not disclaimed, the implied warranty is easily disclaimed.  Consumers are better off with a rock-solid express warranty doctrine than they are with two warranties, one of which is easily disclaimed through contractual boilerplate.

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In Part III, Professor Brain narrates the origins and history of the IWFPP.  The notion of an implied warranty for fitness is almost as old as the implied warranty of merchantability, but right from the start, it could just as well have been treated as an express warranty.  The cases in which the IWFPP arose were all ones in which a seller had either specified through language or implied through conduct that the good was suitable for a particular purpose.  In such cases, the seller should be treated as having offered an express warranty.  In the first case credited with enforcing the IWFPP, Jones v. Bright (1829), 130 Eng. Rep. 1167, three judges described the situation as involving an express warranty and one said it didn’t matter what name we give to the warranty.

Based on this slender reed, the IWFPP was then incorporated into the British Sales Act of 1893.  Professor Williston incorporated the idea into his draft sales act, minus the British Sales Act’s merchant requirement, which provided the basis for its inclusion in the 1915 Uniform Sales Act. From there, the IWFPP was incorporated into the UCC with some revisions.

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In the final section of the article, Professor Brain argues that treating IWFPP claims as express warranty claims would have three main positive effects.  First, we could eliminate pointless disputes over whether the good was being used for its ordinary purpose or a particular purpose.  This is valuable because if all fitness issues are merchantability issues, all the plaintiff has to show is that the seller was a merchant and that the goods were unfit.  The IWFPP requires plaintiff to show that they communicated their particular purpose and relied on the seller’s expertise. In the alternative, the plaintiff could introduce evidence of the seller’s representations of the goods’ fitness and bring an express warranty claim.

Second, it would now be just as difficult to disclaim warranties of fitness as it is to disclaim other express warranties.  This just makes sense.  If express warranties, which are merely “a basis of the bargain” cannot be disclaimed, why would we allow disclaimer of “implied” warranties that are relied on?

Finally, we could sort out some parol evidence problems. Defenders of the IWFPP point out that while an oral express warranty could be excluded under the parol evidence rule (PER), the PER does not apply to implied warranties.  It is thus handy to have the IWFPP in place to protect consumers whose  evidence of an express warranty might be barred under the PER. Professor Brain has two responses.  First, just make the PER inapplicable to warranties because “it’s a terrible rule.”  Agreed.  Second, the courts are appropriately reluctant to deploy the PER to exclude evidence of an express warranty, and they have been very creative in finding reasons to let the evidence in.  So the existence of the IWFPP probably doesn’t make much difference.  I am skeptical of the notion that the vanishingly small set of courts of general jurisdiction that might be inclined to exclude evidence of an express warranty based the PER would have the doctrinal dexterity to allow in the same evidence based on an implied warranty theory.

In an appendix, Professor Brain provides a marked-up revision of the relevant UCC sections and comments.  Bravo!