We all understand the idea of a promise, when you tell someone that you will do something you take on the responsibility to actually do it. You are bound to your words. Well, in Texas the warranty is much like a promise. If you buy a product from someone and they make a promise, it is their responsibility to follow through with their words.
In Texas, an express warranty is a promise made by the seller to the buyer which relates to the goods sold. This is a very broad definition; any description of the goods that is part of the deal (or the basis of the bargain) creates an express warranty that the good will actually be what was described. (see U.C.C §2-313) Texas has adopted the Uniform Commercial Code (U.C.C), including its definitions of express and implied warranties. According to the U.C.C it is not necessary for the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that the seller even means to promise something.
Maybe the seller didn’t promise anything out loud but they showed a sample. Well, that is also a promise. Any sample or model which is part of the deal (basis of the bargain) creates an express warranty that the whole of the goods will be like the sample or model.[i] If you are given a sample of a window cleaner, you like it so you buy the bottle. But, when you use the bottle it is totally different than the sample. That is an example of a breach of an express warranty.
But, be careful with how a seller phrases what they say, telling you that this is a “great deal” or “incredible bargain” is not an express warranty. A seller can also tell you anything about their opinion, “I think this is the best window cleaner on the market, I think it smells wonderful” is not a promise. The seller’s opinion or recommendation of the goods does not create a warranty.
What is a Breach of a Warranty?
So, you think that a seller might have broken their word to you?
Under contracts law, we call breaking a promise, a breach of warranty.
Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim or representation made concerning the quality or type of the product. The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she must stand behind these assertions. If the seller tells you something when convincing you to buy a product, what they tell you must be true.
To prove a breach of warranty, you must show that what you were told when making the deal (the basis of the bargain) was misrepresented in order for you to purchase the product. In Sweco, Inc. v. Continental Sulfur & Chemical, 808 S.W.2d 112 (Tex. App. El Paso 1991) a sulfur plant purchased a grinder so that they could grind sulfur and process it for sale. They were told the grinder could make 3,200 pounds of sulfur per hour when actually it produced 800 pounds of ground sulfur per hour. The jury decided that
1) appellant made false representations to appellee;
2) appellee relied on the representations and would not have purchased the grinder but for the representation;
3) the representations were material
The appeals court affirmed that part of the judgment of the trial court, which awarded damages for the purchase price of the grinder, for loss of net profits, and for attorney’s fees.
Don’t be deterred even if the product used was not very expensive. Not only can a successful claim recover attorney’s fees, the law punishes the seller beyond the cost of the product. A breach of warranty is a violation of the Texas DTPA (Texas Deceptive Trade Practice Act), and have statutory penalties up to three times the amount of “economic” damages.