In common law
jurisdictions, an implied warranty
is a contract law
term for certain assurances that are presumed to be made in the sale of products or real property
, due to the circumstances of the sale. These assurances are characterized as warranties
irrespective of whether the seller has expressly promised them verbally or in writing. They include an implied warranty of fitness for a particular purpose
, an implied warranty of merchantability
for products, and an implied warranty of habitability
for a home.
Fitness for a particular purpose
An implied warranty of fitness for a particular purpose
is a warranty implied by law that if
a seller knows or has reason to know of a particular purpose
for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.
International sales law
In international sales law, the obligation is found in Article 35(2)(b) of the United Nations Convention on Contracts for the International Sale of Goods
, the is obligation is in section 71(2) of the Trade Practices Act 1974
In the United States
, the obligation is in Article 2, Section 315 of the Uniform Commercial Code
. The warranty of fitness differs from a warranty of merchantability in that it applies to all sellers, not only professional merchants. In the United States, this warranty is sometimes referred to simply as a warranty of fitness
An implied warranty of merchantability
is a warranty implied by law that goods are reasonably fit for the general purpose for which they are sold.
International sales law
In international sales law, merchantability forms part of the ordinary purpose of the goods. According to Article 35(2)(a) of the United Nations Convention on Contracts for the International Sale of Goods, a seller must provide goods fit for their ordinary purpose.
In Australia, the obligation is in section [66(2) of the Trade Practices Act 1974.]
In the United States
, the obligation is in Article 2 of the Uniform Commercial Code
(UCC). This warranty will apply to a merchant (that is, a person who makes an occupation of selling things) who regularly deals in the type of merchandise sold.
Under US law, goods are 'merchantable' if they meet the following conditions:
- The goods must conform to the standards of the trade as applicable to the contract for sale.
- They must fit for the purposes such goods are ordinarily used, even if the buyer ordered them for use otherwise.
- They must be uniform as to quality and quantity, within tolerances of the contract for sale.
- They must be packed and labeled per the contract for sale.
- They must meet the specifications on the package labels, even if not so specified by the contract for sale.
If the merchandise is sold with an express "guarantee", the terms of the implied warranty of merchantability will fill the gaps left by that guarantee. If the terms of the express guarantee are not specified, they will be considered to be the terms of the implied warranty of merchantability. The UCC allows sellers to disclaim the implied warranty of merchantability, provided the disclaimer is made conspicuously and the disclaimer explicitly uses the term "merchantability" in the disclaimer. Some states, however, have implemented the UCC such that this can not be disclaimed.
An implied warranty of habitability is a warranty implied by law that by leasing a residential property, the lessor is promising that it is suitable to be lived in, and will remain so for the duration of the lease.
Disclaimer of an implied warranty
In some jurisdictions, an implied warranty in a sales contract
can be expressly disclaimed by the use of specific language, such as the words, "as is
" or "with all faults".
In the United States, a disclaimer must be conspicuous in the contract, e.g., in a different kind of print or font that makes it stand out. On the other hand, express warranty
, that is, any affirmation of fact or promise to the buyer, or description of the good, oral or written, can be negated or limited only if such disclaimers are not unreasonable. (Uniform Commercial Code
, Section 2-316 (1)).
Some jurisdictions, however, limit the ability of sellers or manufacturers to disclaim the implied warranty of merchantability or fitness, such as Massachusetts. (Massachusetts General Laws, Chapter 106: Section 2-316A).
Contractual language can also limit the remedies available for breach of an implied warranty - for example, capping recoverable damages or limiting the remedy to a replacement of a defective item. However, such a term can be found to be unconscionable. For example, if a defective product causes a personal injury, a contractual provision limiting recovery in such a case will be deemed prima facie unconscionable. (Uniform Commercial Code, §2-719(3).)