Express and Implied Warranties

There are several types of warranties recognized under the law. Warranties are generally divided into two main groups: express warranties and implied warranties. Express warranties, as their name suggests, are expressly made by the seller or manufacturer of a product. Generally, express warranties are made in writing, but they need not be in order to be considered express warranties.

Implied warranties, on the other hand, are warranties that arise either from the sale itself or the circumstances of the sale. There are two main types of implied warranties: implied warranties of merchantability and implied warranties of fitness for a particular purpose. The implied warranty of merchantability simply states that a product will reasonably perform the purpose for which it was designed. The implied warranty of fitness for a particular purpose, on the other hand, warrants that a product will perform a specific purpose for which the consumer has bought the product. While this might sound similar to the implied warranty of merchantability, it differs in that the particular purpose for which a consumer buys a product might not be that for which it was designed.

Implied warranties of fitness for a particular purpose usually arise when the seller knows or has reason to know the particular purpose for which the consumer is buying the product, whereas an implied warranty of merchantability does not require such knowledge on the part of the seller. For example, an implied warranty for a particular purpose might arise in a case where a customer tells a sales representative that he is going to be scuba diving, and would like a watch that will continue to perform at depths 50 feet below the surface of the ocean. If the seller suggests a specific watch for this purpose, there is an implied warranty that the watch will continue to perform under the specified conditions.  

Written express warranties on consumer products are governed by the Magnuson Moss Warranty Act, a federal law, as well as a number of state laws. The Magnuson Moss Act sets forth a number of requirements for the content of written warranties, including limitations on warranty disclaimers. The full text of the law can be found here. The Federal Trade Commission (FTC) is an executive agency charged with issuing specific regulations under the Magnuson-Moss Act. Those regulations can be found here.

The Magnuson Moss Act does not limit consumer remedies or rights under state law. Many state laws include provisions governing both express and implied warranties. However, plaintiffs bringing suit under the Magnuson Moss Act may have additional remedies not always available under state law, such as the recovery of attorney’s fees.

The Uniform Commercial Code (UCC) also governs express warranties. The purpose of the UCC, however, was not to protect consumers, but to govern transactions between merchants. Therefore, the level of protection provided under the UCC is fairly low, and provides a sort of minimum standard of protection for consumers. Like the Magnuson Moss Act, the UCC does not limit consumer rights or remedies.