The Lemon Law isn’t your attorney’s only tool.

An experienced attorney has other tools available to protect a consumer’s rights if the lemon law rights period has expired or the statute doesn’t cover your vehicle, boat, RV, or other product.

Breach of Express Warranty

What is an express warranty?

An express warranty is an explicit promise or guarantee by a seller that its goods will have certain qualities. The Uniform Commercial Code provides that “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Since not every state has the same definition of what constitutes an express warranty, a consumer should consult with an experienced attorney when warranty questions arise.

Do oral promises count as an express warranty?

They can; however, unwritten promises can be hard to prove, so be wary of trusting spoken assurances. Any attorney experienced with such cases would advise you to verify all promises are in writing so that they can be considered evidence of an express warranty.

What counts as a breach of express warranty?

An express warranty may be considered breached if the manufacturer fails to correct a particular problem after a reasonable number of days or attempts.

What if my warranty is limited?

A manufacturer warranty is usually a limited warranty. A limited warranty can be limited to replacing specified parts, repairing certain types of defects, or limit your ability to collect all your damages stemming from the manufacturer’s failure to conditions. But since it can mean virtually anything the retailer decides, it is important to fully understand the meaning of “limited” when buying such a product. Often, it covers just the parts and not the labor required to fully fix something. A limited warranty also may include the stipulation that the manufacturer and the consumer split the cost of repairs for a given period of time. A consumer should read their warranty documentation closely and carefully to determine what is covered and what is not before making a purchase. An experienced attorney can help you to figure out if your warranty has been breached and what compensation you’re entitled to recover.

If your express warranty is breached, you may be entitled to a refund (full or partial) of the purchase price, a new/replacement vehicle, or a cash settlement. Even if the warranty attempts to limit the scope of damages you’re entitled to recover, an experienced attorney may be able to recover other damages the manufacturer tries to exclude, especially if the warranty has failed its essential purpose.

If your rights as a consumer as articulated by both state and federal law are not being respected by the manufacturer of your defective vehicle, call 888-929-WISE (888-929-9473) to schedule a free consultation and case review.

What other laws relate to express warranties?

Finally, while not part of the UCC, and not covered in this article, there are other laws that relate to express warranties. Perhaps the most important among these is the Magnuson-Moss Warranty Act, which is a federal law governing express warranties related to consumer products.

Implied Warranty of Merchantability

What is an implied warranty of merchantability?

The UCC mandates that every manufacturer gives the implied warranty of merchantability for every sale of its product, unless the manufacturer disclaims it. The implied warranty of merchantability means that every product must be fit for its ordinary use. The implied warranty is the minimum standard set for each product sold by a manufacturer. Its importance cannot be overstated. Currently, there is a significant split of authority among the states on whether a buyer must be in privity with the manufacturer of the product before that buyer can sue the manufacturer for breach of the implied warranty of merchantability.

The implied warranty of merchantability is given by every seller who is a merchant with respect to the goods it sells. A manufacturer qualifies as a merchant, and therefore gives the implied warranty of merchantability every time it sells a good. The implied warranty of merchantability is understood to mean that the good being sold is fit for the ordinary purpose for which such good is normally used. Stated differently, the implied warranty of merchantability requires that a manufacturer’s good will actually fulfill its understood purpose. In other words, your vehicle should start and drive, and if it doesn’t, the implied warranty of merchantability has been breached. The importance of the implied warranty of merchantability is underscored by the fact that it is required by law in every merchant transaction. It is a mandated, statutory warranty as opposed to an express (written) warranty which the seller has the option to offer.

Can a manufacturer avoid responsibility if every transaction includes the warranty of merchantability?

Yes, some states allow manufacturers to expressly modify or completely exclude the implied warranty of merchantability. To expressly exclude or modify the implied warranty of merchantability, the manufacturer’s disclaimer must mention the word “merchantability” and, if the disclaimer is in writing, it must be conspicuous.

The implied warranty of merchantability can also be excluded by expressions such as “as is” or by the buyer’s inspection of the goods prior to their purchase. The implied warranty of merchantability can be modified or excluded by course of dealing, course of performance, or trade practice.

Does a breach of the warranty of merchantability automatically entitle a consumer to a refund and their attorney fees?

No. Another way for manufacturers to control risk of loss is by limiting the buyer’s remedies in the event of a loss. The manufacturer may limit the buyer’s remedy to an exclusive one (e.g., repair or replacement) provided that remedy does not fail for its essential purpose. Finally, the manufacturer may also exclude consequential damages, unless the exclusion is deemed unconscionable. All of the foregoing methods are available to a manufacturer to control its exposure in the event it sells you, the consumer, a lemon.

However, an experienced consumer attorney can use the UCC to demonstrate that a significant breach of the manufacturer’s warranty, leaves the consumer with no remedy thus failing its essential purpose, and that the consumer is entitled to all its damages, including consequential damages, and attorney fees.

The manufacturers have experienced employees and attorneys to guide them through this process. One way to protect your consumer rights is to consult an attorney with experience representing owners of defective vehicles and other products.
Please call 888-929-WISE or click here for a free claim evaluation and to schedule a personal consultation.

The Magnuson-Moss Warranty Act can protect buyers without state lemon law protection.

The Magnuson-Moss Warranty Act is an important part of the experienced lawyer’s consumer protection toolbox. If you have a question about your non-conforming product, please call 888-929-WISE (9472) or click here schedule your free case review and consultation.

What is the Magnuson-Moss Warranty Act?

Passed by Congress in 1975, the Magnuson-Moss Warranty Act is federal law relevant to consumer product warranties. It stipulates that consumers be provided with detailed information about warranty coverage by the manufacturers and sellers of consumer products. The Act establish three basic requirements that may apply to your transaction.

  1. A warrantor, must designate, or title, its written warranty as either “full” or “limited”.
  2. A warrantor, must state certain specified information about the coverage of your warranty in a single, clear, and easy-to read document.
  3. A warrantor or a seller, must ensure that warranties are available where your warranted consumer products are sold so that consumers can read them before buying.

The titling requirement, established by the Act, applies to all written warranties on consumer products costing more than $10. However, the disclosure and pre-sale availability requirements, established by FTC Rules, apply to all written warranties on consumer products costing more than $15.

There are three prohibitions under the Magnuson-Moss Act. They involve implied warranties, so-called “tie-in sales” provisions, and deceptive or misleading warranty terms.

Disclaimer or Modification of Implied Warranties

The Act prohibits anyone who offers a written warranty from disclaiming or modifying implied warranties. This means that no matter how broad or narrow your written warranty is, customers always will receive the basic protection of the implied warranty of merchantability.

There is one permissible modification of implied warranties, however. If the manufacturer offers a “limited” written warranty, the law allows it to include a provision that restricts the duration of implied warranties to the duration of your limited warranty.

If you buy a consumer product that comes with a written warranty from its manufacturer from a dealer that does not warrant the product in writing, the seller can disclaim any implied warranties. But, regardless of whether they warrant the products they sell, a seller must give its customers copies of any written warranties from product manufacturers.

Consumer Lawsuits

The Act makes it easier for purchasers to sue for breach of warranty by making breach of warranty a violation of federal law and allowing consumers to recover court costs and reasonable attorneys’ fees. This means that if you lose a lawsuit for breach of either a written or an implied warranty, you may have to pay the customer’s costs for bringing the suit, including lawyer’s fees.

Because of the stringent federal jurisdictional requirements under the Act, most Magnuson-Moss lawsuits are brought in state court. However, major cases involving many consumers can be brought in federal court as class action suits under the Act.

The manufacturers have experienced employees and attorneys to guide them through this process. One way to protect your consumer rights is to consult an attorney with experience representing owners of defective vehicles and other products. For a free claim evaluation and to schedule a personal consultation, please call 888-929-WISE (888-929-9473).