When businesses buy goods, equipment, or services, they rely on sellers’ assurances about what they’re purchasing. These promises and representations—whether made in writing, orally, or through samples and demonstrations—can create legally binding express warranties that obligate sellers to deliver what they promised. Understanding express warranties is crucial for both buyers seeking to enforce sellers’ promises and sellers wanting to limit their exposure to warranty claims.
What Are Express Warranties?
An express warranty is a seller’s explicit promise, representation, or assurance about goods or services that becomes part of the basis of the bargain between buyer and seller. Unlike implied warranties (which arise by operation of law), express warranties are created through the seller’s words, actions, or materials.
Under the Uniform Commercial Code (UCC), which governs most commercial transactions in the United States, express warranties are created when a seller:
- Makes an affirmation of fact or promise relating to the goods 2. Provides a description of the goods 3. Provides a sample or model of the goods
If these affirmations, descriptions, or samples become part of the basis of the bargain, they create express warranties that the goods will conform to them.
How Express Warranties Are Created
Affirmations of Fact or Promises
Express warranties arise from specific statements about goods or their characteristics. Examples include:
- “This machine will produce 10,000 units per day”
- “These materials are fire-resistant to 500 degrees”
- “This software is compatible with all major operating systems”
- “This vehicle has never been in an accident”
- “These components will last 100,000 cycles”
The statement must be more than mere seller’s opinion or “puffing”—it must be a factual assertion or promise that the buyer relies upon.
Descriptions of Goods
Descriptions in contracts, specifications, technical documents, or marketing materials can create express warranties. When a contract specifies detailed requirements, those specifications become express warranties that goods must meet.
For example, a contract describing “Grade A steel, meeting ASTM standards” creates a warranty that the delivered steel will be Grade A and meet those standards.
Samples and Models
When sellers provide samples or models, they create express warranties that the delivered goods will conform to the sample or model. This is particularly important in industries where buyers evaluate physical samples before placing large orders.
If a manufacturer provides a prototype laptop with specific performance characteristics and the buyer orders 1,000 units based on that prototype, the manufacturer warrants that the delivered units will match the prototype.
Distinguishing Express Warranties from Puffing
Not every seller statement creates a warranty. Courts distinguish between:
Express Warranties (Enforceable)
- Specific, objective assertions of fact
- Measurable characteristics or performance standards
- Detailed descriptions and specifications
- Representations that buyers can objectively verify
Puffing (Not Enforceable)
- General, subjective opinions
- Statements of value or quality in vague terms
- Commendations using superlatives
- Sales talk that reasonable buyers wouldn’t take literally
For example:
- “This is the best product on the market” = puffing
- “This product achieves 99% efficiency” = express warranty
- “You’ll love working with this software” = puffing
- “This software processes 1,000 transactions per minute” = express warranty
The distinction often depends on whether a reasonable buyer would understand the statement as a factual assertion or mere opinion.
Basis of the Bargain Requirement
For a statement to create an express warranty, it must become part of the “basis of the bargain.” This means the buyer relied on the statement in deciding to purchase. While the UCC presumes that any affirmation, description, or sample becomes part of the basis of the bargain, sellers can rebut this presumption by showing the buyer didn’t rely on the statement.
Factors courts consider include:
- Timing of the statement (before or after purchase)
- Specificity and importance of the statement
- Buyer’s sophistication and ability to verify independently
- Whether the buyer actually examined the goods
- Whether the statement was in writing or oral
Written vs. Oral Express Warranties
Written Warranties
Written warranties appear in:
- Sales contracts and purchase orders
- Product specifications and data sheets
- Marketing materials and brochures
- Product labels and packaging
- Websites and online listings
- Certificates of conformance
- Email communications
Written warranties are easier to prove and enforce because there’s clear evidence of what was promised.
Oral Warranties
Oral statements can also create express warranties, though they’re harder to prove. Sales representatives’ oral promises, even if contradicting written terms, can create enforceable warranties if they become part of the basis of the bargain.
This creates risks for sellers, as unauthorized statements by sales staff can bind the company to warranties management never approved.
The Parol Evidence Rule and Integration Clauses
The parol evidence rule and integration clauses complicate express warranty claims:
Parol Evidence Rule
This rule generally prevents parties from introducing evidence of prior or contemporaneous oral statements that contradict a complete written agreement. However, the UCC treats express warranties differently—oral express warranties made during negotiations can be enforced even if the final written contract doesn’t mention them, unless the writing clearly disclaims all other warranties.
Integration Clauses
Contracts often include integration clauses (also called merger clauses) stating that the written contract is the complete and exclusive agreement. These clauses can make it difficult to enforce oral express warranties, though courts may still allow warranty claims if:
- The warranty was made fraudulently
- The integration clause doesn’t specifically mention warranties
- The circumstances indicate the parties didn’t intend the writing to be exclusive
Common Express Warranty Scenarios in Business
Equipment and Machinery
Businesses purchasing equipment commonly receive express warranties about:
- Performance specifications (output, capacity, efficiency)
- Durability and expected lifespan
- Compatibility with existing systems
- Maintenance requirements
- Safety features and compliance with regulations
Software and Technology
Technology purchases often include warranties regarding:
- Functionality and features
- System requirements and compatibility
- Performance metrics (speed, capacity, uptime)
- Security standards
- Support and updates
Raw Materials and Components
Suppliers of materials frequently warrant:
- Specifications and tolerances
- Quality grades and certifications
- Chemical composition
- Performance characteristics
- Compliance with industry standards
Construction and Development
Construction contracts typically include warranties about:
- Materials meeting specified standards
- Workmanship quality
- Compliance with codes and regulations
- Project timeline and milestones
- Performance of completed work
Breach of Express Warranty
A breach of express warranty occurs when goods fail to conform to the seller’s affirmations, descriptions, or samples. The buyer need not prove the seller knew about the defect or acted negligently—warranty liability is strict.
To establish breach, buyers must show: 1. An express warranty existed 2. The goods failed to conform to the warranty 3. The breach caused damages
Notice Requirements
Under the UCC, buyers must notify sellers of warranty breaches within a reasonable time after discovery. Failure to provide timely notice can bar warranty claims. What constitutes “reasonable time” depends on:
- The nature of the goods
- Trade usage
- Circumstances of the breach
- The buyer’s sophistication
Privity
Traditionally, only parties in privity of contract (direct buyer and seller) could bring warranty claims. Modern law has relaxed this requirement in many jurisdictions, allowing end users and third parties to sue for warranty breaches in certain circumstances.
Remedies for Breach of Express Warranty
Buyers have several remedies for breach of express warranty:
Rejection or Revocation of Acceptance
If goods don’t conform to express warranties and the nonconformity substantially impairs their value, buyers can reject them (before acceptance) or revoke acceptance (after acceptance if the defect wasn’t discoverable).
Damages
Buyers can recover damages for breach of warranty, typically measured as the difference between the value of goods as warranted and the value as delivered, plus consequential and incidental damages.
Specific Performance
In appropriate cases, buyers can seek specific performance requiring sellers to deliver conforming goods.
Repair or Replacement
Many warranties provide for repair or replacement of nonconforming goods as the exclusive remedy.
Limiting or Disclaiming Express Warranties
Sellers can limit their warranty exposure through various mechanisms:
Carefully Crafted Statements
Train sales and marketing staff to:
- Avoid making specific factual assertions that could become warranties
- Use appropriate disclaimers
- Refer customers to written documentation
- Avoid contradicting written warranty terms
Written Disclaimers
While express warranties can be disclaimed, doing so is difficult because the disclaimer often contradicts the warranty itself. Courts scrutinize disclaimers carefully and construe ambiguities against the seller.
The UCC allows disclaimer of express warranties only to the extent the disclaimer can be fairly read as consistent with the warranty. If a seller warrants “this engine produces 300 horsepower” and then disclaims all warranties, the disclaimer will likely fail as inconsistent with the express warranty.
Limitation of Remedies
Rather than disclaiming warranties, sellers often limit remedies to repair or replacement, excluding consequential damages. These limitations are generally enforceable if they’re not unconscionable and don’t fail their essential purpose.
Exclusive Remedy Clauses
Contracts can specify that repair or replacement is the exclusive remedy for warranty breaches. However, if the exclusive remedy fails its essential purpose (e.g., seller can’t or won’t repair), buyers may pursue other remedies.
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act is a federal law governing consumer product warranties. While primarily applicable to consumer transactions, it can apply to commercial purchases if products are consumer goods (goods normally used for personal, family, or household purposes).
The Act:
- Requires clear and conspicuous warranty disclosures
- Distinguishes between “full” and “limited” warranties
- Prohibits disclaimer of implied warranties if written warranties are given
- Allows recovery of attorney’s fees for successful warranty claims
Commercial buyers of consumer goods should be aware of Magnuson-Moss protections.
Best Practices for Buyers
To protect your rights under express warranties:
Document Everything
- Keep all marketing materials, brochures, and specifications
- Preserve email communications and oral representations in writing
- Take photos or videos of samples and demonstrations
- Retain sales presentations and proposals
Include Warranties in Contracts
Incorporate important representations into written contracts as express warranties.
Inspect Promptly
Examine goods promptly upon delivery to discover defects while notice requirements are easier to meet.
Provide Timely Notice
Notify sellers of breaches promptly to preserve warranty claims.
Preserve Evidence
Maintain defective goods and evidence of nonconformance for litigation.
Best Practices for Sellers
To manage warranty exposure:
Control Your Messaging
- Implement approval processes for marketing materials
- Train sales staff on warranty implications
- Use samples and demonstrations carefully
- Document what is and isn’t warranted
Use Clear Written Warranties
Provide explicit written warranties that specify:
- What is warranted
- What is not warranted
- Warranty duration
- Available remedies
- Procedures for claiming warranty benefits
Include Appropriate Disclaimers and Limitations
Draft contracts with:
- Integration clauses
- Specifications of exclusive remedies
- Consequential damages exclusions
- Time limitations for claims
Maintain Quality Control
The best warranty defense is delivering conforming goods. Implement quality control systems to ensure goods meet specifications.
How Anunobi Law Can Help
At Anunobi Law, we assist both buyers and sellers with express warranty matters. For buyers, we pursue warranty claims, negotiate settlements, and litigate breaches when sellers fail to deliver what they promised. For sellers, we draft protective warranty provisions, defend against warranty claims, and develop risk management strategies.
Our services include:
- Drafting and reviewing contracts to create or limit express warranties
- Prosecuting warranty breach claims
- Defending against warranty litigation
- Negotiating warranty terms in commercial transactions
- Counseling on warranty compliance and risk management
- Handling disputes over warranty interpretation and performance
We understand the commercial realities of warranty issues and work to achieve practical solutions that protect our clients’ interests.
Legal Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Warranty law varies by jurisdiction and depends on specific facts, circumstances, and contract terms. For advice regarding your specific situation, please consult with a qualified attorney. Reading this article does not create an attorney-client relationship.