California Civil Jury Instructions (CACI)

1231. Implied Warranty of Merchantability - Essential Factual Elements

[Name of plaintiff] [also] claims that [he/she/it] was harmed by the [product] that [he/she/it] bought from [name of defendant] because the [product] did not have the quality that a buyer would expect. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] bought the [product] from [name of defendant];

2. That, at the time of purchase, [name of defendant] was in the business of selling these goods [or by [his/her/its] occupation held [himself/herself/itself] out as having special knowledge or skill regarding these goods];

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

[was not of the same quality as those generally acceptable in the trade;]

[was not fit for the ordinary purposes for which such goods are used;]

[did not conform to the quality established by the parties’ prior dealings or by usage of trade;]

[other ground as set forth in Commercial Code section 2314(2);]

4. [That [name of plaintiff] took reasonable steps to notify [name of defendant] within a reasonable time that the [product] did not have the expected quality;]

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

6. That the failure of the [product] to have the expected quality was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003

Directions for Use

This cause of action could also apply to products that are leased. If so, modify the instruction accordingly.

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 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.)
  • “Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. It does not ‘impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality.’ ” (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295—1296 [44 Cal.Rptr.2d 526], internal citations omitted.)
  • It has been observed that “in cases involving personal injuries resulting from defective products, the theory of strict liability in tort has virtually superseded the concept of implied warranties.” (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 432 [79 Cal.Rptr. 369].)
  • Commercial Code section 2314 provides:

    (1) Unless excluded or modified (Section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

    (2) Goods to be merchantable must be at least such as

    (a) Pass without objection in the trade under the contract description; and

    (b) In the case of fungible goods, are of fair average quality within the description; and

    (c) Are fit for the ordinary purposes for which such goods are used; and

    (d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

    (e) Are adequately contained, packaged, and labeled as the agreement may require; and

    (f) Conform to the promises or affirmations of fact made on the container or label if any.

    (3) Unless excluded or modified (Section 2316) other implied warranties may arise from course of dealing or usage of trade.

  • “Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranties of fitness and merchantability.” (United States Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279 Cal.Rptr. 533], internal citations omitted.)
  • Although privity appears to be required for actions based upon the implied warranty of merchantability, there are exceptions to this rule, such as one for members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr. 863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she leases or negotiates the sale or lease of the product. (United States Roofing, Inc., supra.)
  • Commercial Code section 2104(1) defines “merchant,” in relevant part, as “a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction.”
  • Commercial Code section 2105(1) defines “goods,” in relevant part, as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid.”
  • Commercial Code section 1303 provides:

    (a) A “course of performance” is a sequence of conduct between the parties to a particular transaction that exists if:

    (1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and

    (2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.

    (b) A “course of dealing” is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

    (c) A “usage of trade” is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage must be proved as facts. If it is established that such a usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.

    (d) A course of performance or course of dealing between the parties or usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware is relevant in ascertaining the meaning of the parties’ agreement, may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement. A usage of trade applicable in the place in which part of the performance under the agreement is to occur may be so utilized as to that part of the performance.

    (e) Except as otherwise provided in subdivision (f), the express terms of an agreement and any applicable course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. If such a construction is unreasonable:

    (1) express terms prevail over course of performance, course of dealing, and usage of trade;

    (2) course of performance prevails over course of dealing and usage of trade;

    (3) course of dealing prevails over usage of trade.

    (f) Subject to Section 2209, a course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance.

    (g) Evidence of a relevant usage of trade offered by one party is not admissible unless that party has given the other party notice that the court finds sufficient to prevent unfair surprise to the other party.

Secondary Sources

4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51

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, §§ 502.24, 502.51, 502.200—502.214 (Matthew Bender)

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