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Flashcards

Warranties

Rob C. English 28 cards

Cards in this deck (28)

  1. 1Elements of Breach of Warranty Claim1. A Warranty arose
    2. Warranty was breached
    3. Breach of W proximately caused harm
    4. Damages
    5. Proper notice to seller
  2. 2Breach of Warranty: NoticeBuyer must give notice w/in a reasonable time after buyer discovers or should discover breach.
    Only needs to inform sell that there is a possible breach.
  3. 3Types of Privity1. Vertical Privity - When buyer tries to sue someone above immediate seller in distribution chain.
    2. Horizontal Priv - Someone other than buyer sues.
  4. 4A JurisidictionsExtends to any natural person in the family or household of buyer or is a guest in buyer's home. If it is reasonably expected such person may be affected by the goods.
    (most narrow)
  5. 5B JurisidctionsExtends to any natural person who may reas. be expected to use, consume, be affected by goods and is injurd by breach.
    (medium)
  6. 6C JurisdictionsExtends to ANY PERSON who may reas be expected to use, affected by, by goods and injured by breach. Seller can't limit this section with respect to injuries to people, but can limit for property.
    covers corporations and personal prop.
  7. 7Magnuson Moss Warranty Act- Applies to Consumer Products
    - Doesn't require a consumer product to be warrantied.
    - But if a seller does offer a written warranty - MMWA acts as a truth in labeling law
  8. 8MMWA: If Written Warranty Offered1. S must indicate conspicuously whether it is a limited or full W.
    2. S must include certain terms required by regulators.
    3. S has to make the W available before purchase.
  9. 9MMWA: Definition of Consumer ProductAny tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes.
  10. 10MMWA: Jurisidction1. Can bring MMWA in state court.
    2. Can bring in Fed Court if:
    - single claim is 50k or more,
    - class actions meets statutory requirements, over 50k, no claim less than $25, at least 100 members.
  11. 11MMWA & Horizontal PrivityUnder MMWA: A Consumer can bring suit.
    A buyer, any person to whom product is transferred during duration of product's W, any any other person entitled by terms of W, or under state law, to enforce the W.
  12. 12MMWA & Vertical PrivityNot an issue so long as there is a written warranty.
  13. 13Advantages to MMWA1. Attorney's Fees Possible
    2. Fed Ct. Jurisdiction possible
    3. Def of consumer broad enough to overcome horiz priv.
    4. Elimination of vertical priv with written W's.
  14. 14How to Disclaim IW of Merchantability1. Express Oral or Written Disclaimer: Must mention merchantability. If in writing must be conspicuous.
    2. Using terms "as is", "with faults", lingo drawing attention and makes clear no W.
    3. By buyers examination or refusal to examine.
    4. Course of deal/perform; trade usage
  15. 15W Disclaimer: ConspicuousSo written, displayed or promoted that a reasonable person against whom it operates ought to have noticed it.
    KEY - whether attention can reas be expected to be called to it.
  16. 164 Ways to Disclaim IW of Fitness for Particular Purpose: 1 & 21. Must be in writing, conspicuous, w/ suff language.
    2. Use of expressions like "as is" or other lingo that calls B's attention to exclusion and makes clear no IW
  17. 174 Ways to Disclaim IW of Fitness for Particular Purpose: 3 & 43. By buyer's examination or refusal to examine.
    - No IW for defects an investigation ought to have revealed.
    4. Course of deal/perform, trade usage
  18. 18Disclaiming Express W's: Scenarios1. Purported disclaimer is in written agreement containing EW.
    2. Purported EW made prior to written agreement.
  19. 19Disclaiming EW's In Written AgreementDisclaimers inconsistent w/ language of EW are denied effect, to protect B's from unexpected and unbargained language of disclaimer.
  20. 20Disclaiming EW's Made Prior to Written Agreement & Disclaimer in Written Agreement.....
  21. 21Ways in which Sellers try to limit exposure to liability1. Disclaim/Exclude some or all W's
    2. Limit duration of some W's
    3. Provide for an exclusive remedy (repair/replace..etc.)
    4. Place limits on damages B can recover..limit or exclude conseq. damages
  22. 22If there is a written W attached to a Consumer Product, MMWA Requires:MMWA requires written warranties, if given, to be prominently designated as either full or limited.
  23. 23MMWA: Full W Requirements1. Can't disclaim an IW.
    2. Can't limit duration of an IW.
    3. S has obligation to remedy defective products w/o charge & in reas time.
    4. Any disclaimer of conseq damages liability must be conspicuous.
    5. Must give B choice of refund or fee replacement after a reas # of remedies fail.
  24. 24MMWA's impact on S's ability to disclaim IW's1. Can't disclaim IW if a written W w/ respect to the consumer product is given - this applies whether the W is full or limited.
    2. Can't disclaim if a service K applying to the consumer product is entered into at or w/in 90 days after the sale.
  25. 25MMWA's impact on S's ability to limit duration of IW's1. Can't limit duration if "full W" is offered.
    2. Otherwise, can limit to duration of a written W of reas duration as long as limitation is conscionable and set forth in clear and unmistakable language and prominently displayed on face of W.
  26. 26Limitation of Remedies: Article 21. An exclusive remedy must be clearly expressed as such.
    2. Limited/exclusive remedy can't be unconscionable.
    3. A clause which fails of its essential purpose or deprives B of benefit of bargain, its no good.
    4. Can limit/exclude conseq damages - unless unconscionable.
    5. Limiting conseq damages for personal injury is prima facie uncon.
  27. 27MMWA: S's ability to limit damages for Full Warranty1. S can limit/exclude conseq damages only if the exclusion/limitation appears in conspicuous manner on face of W.
    2. S must refund or replace if S cannot remedy malfunction or defect after reasonable # of attempts to repair.
  28. 28MMWA: S's ability to limit damages with limited W1. For consumer products over $15, consequential can only be limited by conspicuous limitation in easily understood language.
    2. No limitation on use of exclusive remedy of repair/replace.

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Description
Flashcards on Warranties, created by Rob C. on 14/12/2015.
Created by
Rob C. · Dec 2015
Updated
Feb 19, 2016
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