Products are generally marketed with, and supported by, various affirmative assertions from the seller with respect to certain characteristics of quality, safety, performance, and durability. These assertions, usually referred to as “warranties,” may be provided in written or oral form, although they are most commonly found in advertisements, brochures, and specification sheets. In fact, a warranty may also be derived from representations of the product in models and pictures. Regardless of their form, warranties or guarantees are important promises by manufacturers or sellers to stand behind the products that they offer to consumers.
Whenever a transaction involving the sales of goods occurs, the parties must be mindful of various types of warranties codified in the general law of sales appearing in the Uniform Commercial Code (“UCC”), including the implied warranty of merchantability; the implied warranty of fitness for particular purpose; and any express warranties provided by the seller in connection with the sale of the specific goods or equipment, typically through affirmative written and oral statements regarding the quality of the items. While implied warranties, subject to applicable regulations, will often be modified or excluded, express warranties generally will be included to some extent in each transaction, primarily as a means of inducing customers to purchase the goods or equipment. As such, care must be taken in drafting such warranties and in designing appropriate remedies and rights for any breach thereof. For complete discussion of warranties under the UCC, see Sale of Goods (§§ 120:1 et seq.).
When writing a commercial or consumer product warranty the manufacturer or seller is faced with a complex set of decisions in determining what type, if any, written warranty to offer. Principally, these decisions will involve determining what combination of implied and express warranties to offer; determining whether to offer a full or limited warranty or multiple warranties on various parts of the product; and determining which disclaimers or limitations to include in the warranty. These issues arise in any sale of goods transaction; however, the focus of this chapter is on consumer product warranties.
Warranty provisions for a consumer sales transaction should be carefully drafted and the provisions should take into account not only the applicable legal requirements but also the business elements associated with providing warranty services to consumer customers. The essential elements of any warranty include each of the following:
- Identification of the parties to the warranty agreement. This should include the name and address of the party offering the warranty and a description of the parties who may be entitled to the benefits of the warranty. The party providing the warranty should address the availability of the warranty to persons other than the original consumer purchaser or lessee and any conditions that need to be satisfied in order for the warranty rights to be transferred to any third parties.
- Clear identification and description of the goods and related parts that will be covered by the warranty and, if appropriate, clear highlighting of any characteristics or components that are excluded from warranty coverage.
- A clear and complete description of the warranties provided with respect to the covered goods and parts (e.g., the goods shall perform in accordance with the specifications etc.). In addition, the warranty statement should also include a clear and complete description of any actions or conditions that may invalidate the warranty, such as the failure of the consumer to use the goods in a certain manner or defects caused by any unauthorized service or repair of the goods.
- A description of the remedies offered in the event that a covered good or part is found to be defective, malfunctions or otherwise fails to perform in accordance with the written warranty. In most cases, the warrantor will agree to replace or repair the covered items within a specified period of time; however, in limited circumstances, the warrantor may be willing to provide a refund of the purchase price.
- Disclosure of the procedures that should be followed by the consumer to exercise its warranty rights, including identification of parties authorized to perform warranty services on behalf of the warrantor. The procedures should address the manner in which the covered goods are returned for warranty service, the amount of time that the warrantor will have to complete the warranty service and the procedures for returning the new or repaired items to the consumer purchaser. If the consumer purchase is required to bear any expenses, these should be clearly stated in the contract.
- Disclose of the duration of the warranty and a clear description of the procedure for determining when the warranty period begins and ends. If any registration of the covered items is required, a statement to this effect should be conspicuously included along with clear procedures for completing the registration.
- A description of dispute resolution procedures that can be used to resolve any questions regarding the performance of the covered goods and the warrantor’s fulfillment of its obligations with respect to providing warranty coverage.
Warranty provisions in consumer sales and lease agreements typically include additional language to address various legal requirements and risk-allocation issues. For example, the warranty should include any language mandated by applicable state law, such as a statement to the effect that certain states do not permit limitations on the duration of any implied warranties or the exclusion or limitation of certain types of remedies. In turn, state laws notwithstanding, the warrantor will almost always seek to exclude or limit incidental and consequential damages and cap the warrantor’s overall liability with respect to warranty claims at the amount actually paid by the consumer purchaser for the covered items.
In response to the widespread misuse by merchants of express warranties and disclaimers, Congress enacted the Magnuson-Moss Warranty Federal Trade Commission Improvement Act of 1975. [15 U.S.C.A. §§ 2301 et seq.; referred to as “the Magnuson-Moss Warranty Act” or “the Federal Act”] The Federal Act is based on the premise that suppliers of consumer goods vigorously use written express warranties as advertising and merchandising devices. If these warranties are to be used, they must meet federal standards in terms of disclosure and remedies provided to an aggrieved consumer.
The Magnuson-Moss Warranty Act regulates service contracts and written warranties on “consumer products” that are distributed in interstate commerce and mandates certain guidelines in connection with written warranties, regulates their disclosure to consumers, restricts conditions on warranties, imposes different requirements for “full” or “limited” warranties, and restricts the ability to disclaim or modify implied warranties. The Federal Act does not require the tendering of a warranty on any product. However, if a written warranty is actually given to the consumer, the warranty and the services connected with it must meet certain specifications as implemented by the rules of the Federal Trade Commission (“FTC”). [16 C.F.R. Pt. 700 to 703]
The rules governing the contents of warranties [15 U.S.C.A. § 2303] apply only to warranties pertaining to consumer products costing the consumer more than $5; however, FTC rules regarding disclosure of written warranty terms [16 C.F.R. §§ 701.1 et seq.] and presale availability of warranty terms [16 C.F.R. §§ 702.1 et seq.] apply only to warranties pertaining to products costing the consumer more than $15. [16 C.F.R. §§ 701.2, 702.3] Certain of the provisions dealing with designation of written warranties [15 U.S.C.A. § 2303] apply only to warranties pertaining to products costing the consumer more than $10. [15 U.S.C.A. § 2303(d)]
Consumers are given a federal cause of action for damages resulting from violation of the Federal Act or of a warranty or service contract regulated by the Federal Act, on which they may sue in an appropriate state or federal court. [15 U.S.C.A. § 2310(d)] Given the legal requirements associated with warranties and the importance from a marketing perspective of issuing and servicing warranties in a lawful manner it is recommended that managers and other personnel responsible for warranties and service contracts offered by their companies familiarize themselves with the information and guidelines in the FTC publication called “A Businessperson’s Guide to Federal Warranty Law”.
When a company offers a product for sale, it should have a standard operating policy which describes the procedures for standing behind its products following their sale. The policy should be reviewed periodically for consistency with all product warranties and applicable law. When formulating a warranty policy, significant attention should be given to the business needs of the client, not just the requirements of the law. A warranty policy serves as a sales tool as well as a means to consciously allocate risk between a seller and a buyer for defective products. A poorly drafted warranty can reduce the sales potential for the company client as well as unnecessarily increase the risk of loss. With appropriate care in the warranty review, the attorney for the company can provide a very valuable service. For further discussion on warranty law issues and practice tools, see Consumer Warranties (§§ 140:1 et seq.) in Business Transactions Solution on WESTLAW, which includes an executive summary for clients regarding federal warranty law (§ 140:61).