Express Warranty Creation: When Sales Talk Becomes a Contract Term
An express warranty exists when a seller makes a factual commitment, description, sample, or model about goods and that representation becomes part of the bargain. The central question is not whether the seller used the word “warranty,” but whether the statement objectively became a contractual assurance about what the buyer would receive.
For a common-law contract, identify whether the statement was a definite, promissory assurance about the subject matter rather than a prediction, opinion, or sales puffery. A statement made during negotiations may become a term if it was part of the exchange that induced the agreement. The buyer must connect the statement to the bargain; the fact that the buyer heard, considered, and purchased after the statement is useful evidence, but the question is contractual commitment, not a separate tort-style reliance analysis.
For a sale of goods, UCC § 2-313 gives three routes to an express warranty:
- Affirmation of fact or promise: A seller’s affirmation of fact or promise relating to the goods that becomes part of the basis of the bargain creates a warranty that the goods will conform.
- Description: A description of the goods that becomes part of the basis of the bargain creates a warranty that the goods will conform to the description.
- Sample or model: A sample or model that becomes part of the basis of the bargain creates a warranty that the whole of the goods will conform to the sample or model.
The seller need not say “warrant,” “guarantee,” or use any formal formula, and the seller need not subjectively intend to create a warranty. Conversely, a statement that is merely an opinion, judgment, or puffery does not create an express warranty. “This is the most beautiful sofa in the state” is ordinarily opinion; “This sofa is made of Italian leather” is an objectively verifiable affirmation of fact.
The basis-of-bargain requirement is the important gate. A statement made before or during contracting can qualify if it helps define the goods promised. A statement first made after the contract ordinarily cannot be part of the original bargain, although a later modification or separate promise may raise a different issue. A written description is not automatically controlling merely because it appears in the contract: the description must still concern the goods promised, and the goods must conform to it.
Keep these near-misses separate:
- A factual assertion concerns a verifiable characteristic; puffery expresses a vague opinion.
- A description identifies what goods are promised; a sample or model supplies a concrete comparison for the goods as a whole.
- An express warranty arises from a particular contractual representation; an implied warranty arises by operation of law. The implied-warranty chapter handles the latter.
- A warranty is a promise whose nonconformity is a breach; a condition controls whether a duty arises. The conditions chapter handles that distinction.
Because this chapter is closed-book, be able to state § 2-313’s three creation routes, the basis-of-bargain requirement, and the no-formal-words and puffery limits without prompting.
Third-Party Rights: Separating Title from Infringement
For a contract for the sale of goods, UCC § 2-312 supplies warranties concerning title, liens, and infringement. Start by separating the two kinds of third-party problem: title concerns the seller’s right to transfer the goods; infringement concerns a third party’s intellectual-property claim.
Under UCC § 2-312(1), the contract includes a warranty by the seller that:
- The title conveyed will be good and its transfer rightful; and
- The goods will be delivered free of any security interest, lien, or other encumbrance of which the buyer had no knowledge at the time of contracting.
The title warranty is not limited to merchants. An occasional seller can breach it. A seller’s honest belief that the seller owns the goods does not defeat the warranty if another person has superior title or the transfer was not rightful. Likewise, an undisclosed valid security interest can breach the warranty even though the seller has possession and appears to own the goods.
Buyer knowledge matters specifically for the encumbrance portion. If the buyer knew at the time of contracting that a particular lien or security interest burdened the goods, the seller does not warrant that the goods will be free of that known encumbrance under § 2-312(1)(b). Do not convert that limitation into a rule that the entire title warranty disappears whenever the buyer knows of one lien.
Under UCC § 2-312(3), unless otherwise agreed, a merchant regularly dealing in goods of the kind warrants that the goods will be delivered free of any rightful claim of a third person by way of infringement or the like. This warranty is narrower than the title warranty in two critical ways:
- It requires a merchant seller regularly dealing in goods of the kind.
- It concerns a rightful intellectual-property claim, such as a legitimate trademark, copyright, or patent claim, rather than ownership of the physical goods.
A mere accusation is not enough. The third party must have a rightful claim. A seller’s sale of stolen goods primarily presents a title problem. A merchant’s sale of goods bearing another company’s unauthorized trademark presents an infringement problem, even if the seller physically possesses the goods.
The buyer-supplied-specifications exception is equally important. If the buyer furnishes specifications and an infringement claim arises from the seller’s compliance with those specifications, the buyer must hold the seller harmless against that claim. The exception does not protect a seller who independently chooses the infringing design, mark, or content. The fact that the buyer approved or requested ordinary features is not enough; the claim must arise from compliance with specifications furnished by the buyer.
The title warranty may be excluded or modified only by specific language or by circumstances giving the buyer reason to know that the seller does not claim title in itself or is selling only such right or title as the seller or transferor may have. The infringement warranty may be excluded or modified by specific language. Apply the general disclaimer material from the topic lesson only after identifying this title-specific rule.
| Doctrine | What activates it | Required gate | Coverage |
|---|---|---|---|
| Express warranty by affirmation or promise | Seller states a fact or makes a promise about goods | Part of basis of bargain under § 2-313 | Goods must conform to the affirmation or promise |
| Express warranty by description | Seller describes the goods | Description is part of basis of bargain under § 2-313 | Goods must conform to description |
| Express warranty by sample or model | Seller supplies sample or model | Sample or model is part of basis of bargain under § 2-313 | Whole shipment must conform |
| Title warranty | Sale of goods | No merchant status required under § 2-312(1) | Good title, rightful transfer, and no unknown lien or encumbrance |
| Infringement warranty | Third-party infringement or similar claim | Merchant regularly dealing in goods of the kind under § 2-312(3) | Goods free of a rightful claim unless otherwise agreed |
Recurring errors:
- Treating “best in town” as a warranty when the concrete statement “made of solid oak” is the factual affirmation.
- Rejecting a warranty because the seller never said “guaranteed,” despite § 2-313’s no-formal-words rule.
- Assuming only a merchant can breach title warranty when an occasional seller transfers stolen goods.
- Treating every accusation by a trademark owner as a rightful infringement claim.
- Applying the buyer-specifications exception when the seller, not the buyer, selected the allegedly infringing design.
One Sale, Three Third-Party Theories: Choosing Two Defensible Rules
Rita occasionally sells surplus athletic equipment and is not a merchant who regularly deals in jerseys. She sells Buyer 100 jerseys for resale.
Before the contract, Rita says, “These are genuine Northstar jerseys manufactured by Northstar.” The invoice describes them as “genuine Northstar jerseys.”
The jerseys are counterfeit and bear Northstar’s registered mark. A bank also proves that it has a valid security interest in the jerseys; Buyer did not know about the security interest when the contract was made. Northstar has a rightful trademark claim, and Buyer supplied no specifications to Rita.
Practice
Which TWO statements are correct?
| (A) Rita’s statement and the invoice description can create an express warranty under UCC § 2-313. | (B) Buyer can invoke the title warranty under UCC § 2-312 because the valid security interest was unknown at the time of contracting, even though Rita is not a merchant. | (C) No express warranty arose because Rita did not use the words “warrant” or “guarantee.” | (D) No title warranty arose because Rita is not a merchant. | (E) The infringement warranty under UCC § 2-312(3) applies because Northstar’s claim is rightful, regardless of Rita’s status. | (F) Buyer must hold Rita harmless because Buyer purchased the jerseys for resale. | |
|---|---|---|---|---|---|---|
| Your answers |
Three Fast Calls: The Rule That Decides Each Fact Pattern
Practice
During a sale of a used espresso machine, the seller says, “It produces 200 cups per hour,” and also says, “It is the finest machine on the market.” The contract identifies the model but does not address output. Which statement created an express warranty?
An occasional seller transfers a used printing press to Buyer. Before contracting, Buyer sees a lender’s notice attached to the press and acknowledges that the seller has not paid the lender. The contract says nothing about the lien. Which statement is correct?
A merchant regularly selling clothing sells shirts bearing a neighboring company’s registered trademark. The neighboring company has a rightful infringement claim, and the buyer supplied no specifications. Which statement is correct?
High-Yield Points - ⚡ Biggest Takeaways
Under § 2-313, a factual affirmation, description, sample, or model creates an express warranty when it becomes part of the bargain. Title warranty applies to every goods seller; infringement warranty ordinarily requires a merchant regularly dealing in the goods. Unknown liens trigger title protection, while rightful intellectual-property claims trigger infringement protection. Buyer-furnished specifications shift infringement protection to the buyer only when the claim arises from compliance with those specifications.
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