Civil Model Jury Charge 4.21 BREACH
OF EXPRESS WARRANTY ON SALE OF GOODS
Plaintiff-buyer claims breach of an
express warranty contending that [the goods] did not conform to an affirmation
of fact [or promise] made by the defendant-seller to the plaintiff-buyer, about
the goods. In that regard I charge you
that any affirmation of fact [or promise] made by the defendant-seller to the
plaintiff-buyer which related to [the goods] and became part of the basis of
the bargain created an express warranty that the goods would conform to the
affirmation [or promise]. In this case
the affirmation of fact [or promise] was [state the affirmation of fact or promise].
If
you find that [the goods] in fact conformed to that express warranty your
verdict will be for defendant-seller. If
you find that [the goods] did not conform to that express warranty you must
then determine whether plaintiff-buyer gave notice of that fact to
defendant-seller within a reasonable time after he/she discovered or should
have discovered that [the goods] did not conform to the express warranty. When plaintiff should have discovered that
[the goods] did not conform depends upon all the facts and circumstances,
including the nature of the nonconformity, the time when [the goods] were put
in use and whether the nonconformity was discoverable by customary and
reasonable inspections.
Notice
will be sufficient in form if it informed the defendant-seller that
plaintiff-buyer claimed that [the goods] were nonconforming. If you find that plaintiff-buyer did not give
such notice or did not give it within a reasonable time after he/she discovered
the nonconformity or should have discovered the nonconformity, your verdict
will be for defendant-seller. If you
find that notice was given within a reasonable time after plaintiff-buyer
discovered or should have discovered the nonconformity, your verdict will be
for plaintiff-buyer and you will proceed to consider the measure of damages.
Cases and Commentary:
This charge assumes that there has
been a finding as a matter of law that seller has made an express warranty
relating to the goods and buyer brings an action for damages. However, the language may be adapted for use
where buyer counterclaims for damages or where buyer raises breach of express
warranty as a defense to seller’s action for the contract price.
See Graulich Caterer Inc. v. Hans
Holterbosch, 101 N.J. Super. 61 (App. Div. 1968). This charge is not intended for use in a
personal injury action or other action sounding in tort. Cf. Collins
v. Uniroyal, Inc., 126 N.J. Super. 401 (App. Div. 1973), aff’d, 64 N.J. 260 (1974), where the court charged the jury on breach of an
express warranty in a personal injury action.
This charge is based upon N.J.S.A. 12A:2-313(1)(a); however, an
express warranty may also be based upon N.J.S.A.
12A:2-313(1)(b) or (c) which provide as follows:
(b) Any description of the goods which is made
part of the basis of the bargain creates an express warranty that the goods
shall conform to that description.
(c) Any sample or model which is made part of
the basis of the bargain creates an express warranty that the whole of the
goods shall conform to the sample or model.
N.J.S.A. 12A:2-313(2) states:
It is not necessary to the creation of an express warranty
that the seller use formal words such as ‘warranty’ or ‘guarantee’ or that
he/she have a specific intention to make a warranty, but an affirmation merely
of the value of the goods or a statement purporting to be merely the seller’s
opinion or commendation of the goods does not create a warranty.
Whether affirmations of fact made by
seller are woven into the fabric of an agreement and whether there are facts
which take such affirmations, once made, out of the agreement requires clear
affirmative proof and is usually a fact issue.
See N.J.S.A. 12A:2-313 Official Comment 3.
What is reasonable time for taking any
action [under the U.C.C.] depends on the nature, purpose and circumstances of
such action. N.J.S.A. 12A:1-204(2).
As to the notice of breach
requirement, a distinction is made between notice where the goods have been
accepted by the buyer N.J.S.A.
12A:2-607(3)(a) and where goods have been rejected by the buyer N.J.S.A. 12A:2-602(1).
See N.J.S.A.
12A:2-714 and 2-715 regarding damages for breach of warranty under the
U.C.C. See also N.J.S.A. 12A:2-712 for definition of “cover.”
See
exclusion or modification of express
warranties. N.J.S.A. 12A:2-316(1).
See
also Model Civil Charge 4.45
regarding actions brought under the Motor Vehicle Lemon Law, N.J.S.A. 56:12-29 et seq.
