1240. Affirmative Defense to Express Warranty - Not "Basis of Bargain"

[Name of defendant] is not responsible for any harm to [name of plaintiff] if [name of defendant] proves that [name of plaintiff] did not rely on [his/her/its] [statement/description/sample/model] in deciding to [purchase/use] the [product].

Sources and Authority

"Under former provisions of law, a purchaser was required to prove that he or she acted in reliance upon representations made by the seller." (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 22 [220 Cal.Rptr. 392].) However, Commercial Code section 2313 does not contain an explicit reliance requirement, leading at least one court to conclude that "[i]t is clear from the new language of this code section that the concept of reliance has been purposefully abandoned." (Id. at p. 23.)

"A warranty statement made by a seller is presumptively part of the basis of the bargain, and the burden is on the seller to prove that the resulting bargain does not rest at all on the representation." (Keith, supra, 173 Cal.App.3d at p. 23.)

"The buyer's actual knowledge of the true condition of the goods prior to the making of the contract may make it plain that the seller's statement was not relied upon as one of the inducements for the purchase, but the burden is on the seller to demonstrate such knowledge on the part of the buyer. Where the buyer inspects the goods before purchase, he may be deemed to have waived the seller's express warranties. But, an examination or inspection by the buyer of the goods does not necessarily discharge the seller from an express warranty if the defect was not actually discovered and waived." (Keith, supra, 173 Cal.App.3d at pp. 23-24.)

Secondary Sources

California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)

20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)

(New September 2003)