KANSAS COMMENT, 1996

1. This section consolidates, under the heading of "express warranties," the obligations that arise in the contracting process as a result of statements of fact, promises, descriptions, and samples or models of the goods. These are the "dickered" aspects of the bargain, as distinguished from the aspects "implied" in common factual situations without the need for particular language or conduct. See 84-2-314 and 82-2-315. Any seller, and not just a merchant, may make an express warranty.

2. Under paragraph (1)(a), any affirmation of fact or promise by the seller can give rise to an express warranty under this section. Subsection (2) makes clear that formal words such as "warrant" or "guarantee" are not necessary. For recent illustrative cases, see Cott v. Peppermint Twist Mgmt. Co., 253 K. 452, 856 P.2d 906 (1993) (waitress' comment that drink was "good"); Cricket Alley Corp. v. Data Terminal Sys., Inc., 240 K. 661, 732 P.2d 719 (1987) (advertisement, display, employee statement, product manual); Stair v. Gaylord, 232 K. 765, 659 P.2d 178 (1983) (irrigation hose guarantee); Elwell v. Maiko Exploration & Drilling, Inc., 1991 Kan. App. LEXIS 145 (1991) (per curiam) (not designated for publication) (collecting examples of representations held to create express warranties). Advertising by the seller may create an express warranty under this paragraph. See Cricket Alley Corp. v. Data Terminal Sys., Inc., supra (quoting Kansas Comment 1983 to this section). Under paragraph (1)(b), any description of the goods may create an express warranty. Under paragraph (1)(c), the use of a sample or model also may give rise to an express warranty.

3. Subsection (2) states that mere affirmations of value of the goods, opinions, commendations, or forms of "puffing" do not create express warranties. A statement by the seller is less likely to create an express warranty if it is verbal rather than written; general rather than specific; related to the consequences of buying rather than the goods being bought; "hedged"; phrased as a statement of opinion rather than fact; or not capable of objective measurement. However, Kansas courts almost never find that a statement by a seller is mere puffing. For recent cases applying Kansas law, see Cott v. Peppermint Twist Mgmt. Co., supra; Voelkel v. General Motors Corp., 846 F. Supp. 1482 (D. Kan.) (language in sales manual is mere commendation), aff'd mem., 43 F.3d 1484 (10th Cir. 1984).

4. Under this section, a representation by the seller must become "part of the basis of the bargain" before it creates an express warranty. This requirement is the Article 2 counterpart to the pre-Code requirement of reliance, but is much less stringent. The buyer need not show any specific or particular reliance. See Young & Cooper, Inc. v. Vestring, 214 K. 311, 521 P.2d 281 (1974); United Sch. Dist. No. 500 v. United States Gypsum Co., 788 F. Supp. 1173 (D. Kan. 1992); see also Olathe Mfg., Inc. v. Browning Mfg., 259 K. 735, 915 P.2d 86 (1996) (quoting Kansas Comment 1983 to this section). The buyer must, however, know of a representation prior to purchase for it to become part of the basis of the bargain. See Voelkel v. General Motors Corp., supra (discussed favorably in Olathe Mfg., Inc. v. Browning Mfg., supra (dicta)). A post-agreement representation might be treated as a contract modification in an appropriate case. See Official Comment 7 to this section. In addition, the buyer's expertise and the timing of the representation also may be relevant to whether it became part of the basis of the bargain. Thus, in Mays v. Ciba-Geigy Corp., 233 K. 38, 661 P.2d 348 (1983), the Kansas Supreme Court held that representations made at a training session involving a different kind of pipe ten years before an explosion did not become the basis of the bargain in which the buyer bought the pipe that exploded. The Court noted that in the intervening years the buyer obtained extensive experience in installing all types of gas line pipe. See also Carson v. Chevron Chem. Co., 6 K.A.2d 776, 635 P.2d 1248 (1981) (dealer's affirmations did not become part of basis of bargain when dealer was inexperienced, buyer was extremely knowledgeable, and buyer influenced most by manufacturer's affirmations).

5. The Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq., has less importance in express warranty cases than in the implied warranty area, although it nonetheless applies. See K.S.A. 60-3302(c) (defining "product liability claim" to include action based on breach of express warranty). Many provisions of the KPLA are predicated on goods being defective, and in an express warranty case it is not necessary for a buyer to show a defect. Instead, a buyer must show only that the goods do not conform to the representation. See Cantrell v. Amarillo Hardware Co., 226 K. 681, 602 P.2d 1326 (1979).

Law Review and Bar Journal References:

Recovery of damages for breach of warranty, Curtis D. Terflinger, 14 K.L.R. 355, 356 (1965).

"Caveat Venditor—Strict Products Liability Under the Uniform Commercial Code," Norman E. Beal, 16 K.L.R. 285, 287 (1968).

Survey of Kansas commercial law (1965-1969), 18 K.L.R. 388, 389, 391 (1970).

"Some Observations on the Law of Misrepresentation in Kansas," James R. Ahrens, 9 W.L.J. 315, 319 (1970).

"New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623, 624 (1975).

"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 572, 593 (1975).

U.C.C. section discussed in article on "Enhanced Injury: Problems of Proof in 'Second Collision' and 'Crashworthy' Cases," W. James Foland, 16 W.L.J. 600, 604 (1977).

"Underlying Philosophy of Article 2," John E. Murray, Jr., 21 W.L.J. 1, 16, 17 (1982).

"History of Warranties of Quality in Sale of Goods," Paul B. Rasor, 21 W.L.J. 175, 184, 213 (1982).

"Broadcast Advertising: What Has It Done to the Audience?" Ronald C. Griffin, 23 W.L.J. 237, 258 (1984).

"Some Observations on the Kansas Product Liability Act (Part I)," William Edward Westerbeke, 53 J.K.B.A. 296 (1984).

"Privity of Contract and Economic Losses: 'Watchman, What of the Night?'" Alan T. Blinzler and Stephen M. Fitzgerald, 11 J.K.T.L.A. No. 1, 13, 14 (1987).

"Breach of Warranty in Product Liability Cases—A Dormant but Powerful Weapon," Thomas E. Hayes, J.K.T.L.A. Vol. XVI, No. 5, 10, 11 (1993).

"Strict Products Liability for Misrepresentation," William E. Westerbeke, J.K.T.L.A. Vol. XX, No. 6, 20 (1997).

"Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).

CASE ANNOTATIONS

1. Sufficient evidence was present from which the jury could find an express warranty since salesman told customer product would not harm cattle. Boehm v. Fox, 473 F.2d 445, 449.

2. Subsection (2) applied; no technical or particular words necessary to create an express warranty; province of the jury to determine whether oral affirmations express warranty. Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 321, 323, 324, 521 P.2d 281.

3. Applied; parol evidence; error in refusal to instruct jury on express warranty. Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 312, 319, 320, 321, 323, 324, 521 P.2d 281.

4. Applied; action for damages for breach of express warranty arising from sale of cattle. Brunner v. Jensen, 215 Kan. 416, 417, 426, 428, 524 P.2d 1175.

5. Section does not inhibit jury finding of express warranty; advertising may form a part of an express warranty. Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, 528, 571 P.2d 48.

6. Agent contracting for disclosed principal not liable for breach of implied warranty. Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 671, 672, 588 P.2d 463.

7. Action for damages resulting from sale of animals under quarantine; alleged violation of act; award of punitive damages upheld. Kiser v. Gilmore, 2 Kan. App. 2d 683, 687, 587 P.2d 911.

8. Showing of a specific defect not required if product fails to perform as warranted. Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326.

9. Where lease agreements were intended to create security interests under 84-1-201(37)(b), provisions of Article 9 of UCC applicable. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 229, 231, 615 P.2d 774.

10. Notice requirement of 84-2-607 applicable only where ordinary buyer-seller relationship exists. Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 782, 635 P.2d 1248 (1981).

11. Finding that computer incapable of performing as warranted upheld. Schatz Distributing Co. v. Olivetti Corp. of America, 7 Kan. App. 2d 676, 679, 647 P.2d 820 (1982).

12. Directed verdict for defendants erroneous; disputed material facts on issue of seller's breach of express warranty unresolved. Stair v. Gaylord, 232 Kan. 765, 770, 659 P.2d 178 (1983).

13. Failure of system was due to misuse; no breach of warranty found. Mays v. Ciba-Geigy Corp., 233 Kan. 38, 62, 661 P.2d 348 (1983).

14. Necessary to prove that both an express warranty was made and was relied on by buyer. Owens-Corning Fiberglas v. Sonic Dev. Corp., 546 F. Supp. 533, 541 (1982).

15. Both statement of sales representative and advertising may form part of express warranty. Transamerica Oil Corp. v. Lynes, Inc., 723 F.2d 758, 762 (1983).

16. Cited; absence of liability on express warranties where parties had no direct dealings with each other examined. Agristor Leasing v. Meuli, 634 F. Supp. 1208, 1219 (1986).

17. Cited; in sale of industrial paint, alleged breach of express warranties, warranties of fitness for particular purpose examined. Ray Martin Painting, Inc., v. Ameron, Inc., 638 F. Supp. 768 (1986).

18. Leasing company with no direct dealings with lessees not liable for express warranty of merchantability where lease contained none. Wight v. Agristor Leasing, 652 F. Supp. 1000, 1011 (1987).

19. Although limited to a seller, breach of express warranty can apply to manufacturer under P.I.K. Civ.2d 13.15. Cricket Alley Corp. v. Data Terminal Systems, Inc., 240 Kan. 661, 665, 732 P.2d 719 (1987).

20. Advertisement relied on by purchaser and representations that advertising correctly constituted express warrant. Hemmert Agr. Aviation v. Mid-Continent Aircraft, 663 F. Supp. 1546, 1552 (1987).

21. Foreign manufacturers' designation of American corporation to market products nationwide sufficient for jurisdiction under long arm statute (60-308(b)(7)). Bohannon v. Honda Motor Co., Ltd., 682 F. Supp. 42, 43 (1988).

22. Computation of damages and instructions on fault examined where plaintiffs served dishwashing liquid rather than similar-looking alcoholic beverage. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 458, 490, 856 P.2d 906 (1993).

23. Whether reliance is an element for breach of express warranty under UCC in federal/state conflict of law issue examined. Professional Service Industries v. Kimbrell, 834 F. Supp. 1310 (1993).

24. Whether manufacturer's statements regarding quality of seat belts in sales manual qualify as express warranty examined. Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1485 (1994).

25. Express warranty limitation of repair and replacement on sale of goods did not apply to buyer. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 745, 915 P.2d 86 (1996).

26. Statement on window sticker of automobile did not create express warranty. Brand v. Mazda Motor Corp., 978 F. Supp. 1382, 1390 (1997).

27. Evidence sufficient to demonstrate a genuine dispute as to express warranty. Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F. Supp. 2d 1147, 1153 (2007).

28. Claims for breech of implied warranty of merchantability discussed; motion to dismiss for defendants denied. In re Motor Fuel Temperature Sales Practices Litigation, 534 F. Supp. 2d 1214, 1215, 1233 (2008).