California Civil Jury Instructions (CACI)

1230. Express Warranty—Essential Factual Elements

[Name of plaintiff] claims that [he/she/it] was harmed by the [product] because [name of defendant] represented, either by words or actions, that the [product] [insert description of alleged express warranty, e.g., “was safe”], but the [product] was not as represented. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [insert one or more of the following:]

[made a [statement of fact/promise] [to/received by] [name of plaintiff] that the [product] [insert description of alleged express warranty];] [or]

[gave [name of plaintiff] a description of the [product];] [or]

[gave [name of plaintiff] a sample or model of the [product];]

2. That the [product] [insert one or more of the following:]

[did not perform as [stated/promised];] [or]

[did not meet the quality of the [description/sample/model];]

3. [That [name of plaintiff] took reasonable steps to notify [name of defendant] within a reasonable time that the [product] was not as represented, whether or not [name of defendant] received such notice;]

4. That [name of plaintiff] was harmed; and

5. That the failure of the [product] to be as represented was a substantial factor in causing [name of plaintiff]’s harm.

[Formal words such as “warranty” or “guarantee” are not required to create a warranty. It is also not necessary for [name of defendant] to have specifically intended to create a warranty. But a warranty is not created if [name of defendant] simply stated the value of the goods or only gave [his/her] opinion of or recommendation regarding the goods.]

New September 2003; Revised February 2005

Directions for Use

The giving of notice to the seller is not required in personal injury or property damage lawsuits against a manufacturer or another supplier with whom the plaintiff has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)

If an instruction on the giving of notice to the seller is needed, see CACI No. 1243, Notification/Reasonable Time.

Sources and Authority

  • “A warranty relates to the title, character, quality, identity, or condition of the goods. The purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20 [220 Cal.Rptr. 392], internal citation omitted.)
  • “A warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or their quality or quantity.” (4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51.)
  • California Commercial Code section 2313 provides:

    (1) Express warranties by the seller are created as follows:

    (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

    (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 the 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.

    (2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he 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.

  • California Commercial Code section 2102 provides: “Unless the context otherwise requires, this division applies to transactions in goods.” Section 2105 defines “goods” as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale.”
  • “Privity is not required for an action based upon an express warranty.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
  • “ ‘The determination as to whether a particular statement is an expression of opinion or an affirmation of a fact is often difficult, and frequently is dependent upon the facts and circumstances existing at the time the statement is made.’ ” (Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
  • “Statements made by a seller during the course of negotiation over a contract are presumptively affirmations of fact unless it can be demonstrated that the buyer could only have reasonably considered the statement as a statement of the seller’s opinion. Commentators have noted several factors which tend to indicate an opinion statement. These are (1) a lack of specificity in the statement made, (2) a statement that is made in an equivocal manner, or (3) a statement which reveals that the goods are experimental in nature.” (Keith, supra, 173 Cal.App.3d at p. 21.)
  • “It is important to note . . . that even statements of opinion can become warranties under the code if they become part of the basis of the bargain.” (Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
  • The California Supreme Court has stated that “[t]he basis of the bargain requirement represents a significant change in the law of warranties. Whereas plaintiffs in the past have had to prove their reliance upon specific promises made by the seller, the Uniform Commercial Code requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations omitted.) However, the Court also noted that there is some controversy as to the role, if any, of reliance in this area.
  • The court in Keith, supra, 173 Cal.App.3d at p. 23, held that the seller has the burden of proving that the bargain did not rest at all on the representation, for example, by showing that the buyer inspected and discovered the defect before the contract was made.
  • “It is immaterial whether defendant had actual knowledge of the contraindications. ‘The obligation of a warranty is absolute, and is imposed as a matter of law irrespective of whether the seller knew or should have known of the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
  • “[A] sale is ordinarily an essential element of any warranty, express or implied . . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137 Cal.Rptr. 417], internal citations omitted.)

Secondary Sources

4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 56–66

California Products Liability Actions, Ch. 2, Liability for Defective Products, §§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, §§ 502.23, 502.42–502.50, 502.140–502.150 (Matthew Bender)

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