Express and Implied Warranties

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Express and Implied Warranties
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What basic obligations do you presume the seller
should take?

• In a sale the seller is the party to provide
  goods. What the seller should do is
• (1) to deliver the goods
• (2) to hand over any documents relating to the
  goods
• (3) to transfer the property in the goods

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Different contract laws classify the sellers
obligations in different ways.

• 1. English law of contract
• The sellers obligations are classified into
  conditions and warranties.
• How to distinguish conditions and warranties?
• (1) conditions----main/fundamental contractual
  terms underlying the contract

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• warranties----contractual terms subsidiary to the
  main purposes of the contract
• (2) If the seller breaches conditions of the
  contract, the buyer can avoid the contract and
  claim damages.
• If the seller breaches warranties of the
  contract, the buyer cannot avoid the contract and
  only can claim damages.

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• 2. American law of contract UCC
• The sellers obligations are classified into
  express warranties and implied warranties.
• (1) express warranties are contractual terms
  directly made by the seller about their goods and
  should be spelled out clearly.

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• Implied warranties are those warranties that
  are not expressly given in contract by the seller
  but are read into the contract by the law. That
  is, they are not written in a contract, but are
  legally taken to be present in the contract.

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• 3. The sellers obligations under CISG
• The provisions of the CISG are similar to those
  in the UCC.
• Under CISG Article 35, the seller must deliver
  goods that are of the quantity, quality and
  description required by the contract.

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• Disclaiming implied warranties
• What is the main difference between the UCC and
  the CISG in making disclaimers?
• (1) One notable difference between the UCC and
  the CISG is that U.S. law places the restrictions
  on the parties ability to limit the implied
  warranties of the UCC. The CISG has no
  restrictions in limiting disclaimers. Any form of
  disclaimer is allowed under the CISG.

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• (2) Under the UCC, if a seller does not want to
  take some obligations concerning implied
  warranties, he may disclaim an implied warranty
  only by using conspicuous, or specified, language
  to that effect.

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Notice of Nonconforming Goods

• Most legal systems require that notice be given
  by a buyer to a seller in the event of a breach
  due to nonconforming goods.
• Many European countries prefer short period of
  notification (often a year or less). However, the
  developing countries prefer longer period.

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• The CISG is in favor of the concerns of
  developing countries as to this point. (Art.
  38/39)
• Under CISG (1) the buyer examines the goods
  within as short a period as is practicable after
  they are received (2) the buyer should give
  notice of a nonconformity or defect in the goods
  within a reasonable time unless some reasonable
  excuse prevents doing so (3) notice must be
  given within two years from the date on which the
  goods were handed over to the buyer(4) if the
  buyer fails to give proper notice, the buyer
  loses the right to assert the breach against the
  seller.

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• Under CISG (1) the buyer examines the goods
  within as short a period as is practicable after
  they are received (2) the buyer should give
  notice of a nonconformity or defect in the goods
  within a reasonable time unless some reasonable
  excuse prevents doing so (3) notice must be
  given within two years from the date on which the
  goods were handed over to the buyer(4) if the
  buyer fails to give proper notice, the buyer
  loses the right to assert the breach against the
  seller.

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