CACI No. 1231. Implied Warranty of Merchantability - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2022 edition)

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1231.Implied Warranty of Merchantability - Essential Factual
[Name of plaintiff] [also] claims that [he/she/nonbinary pronoun/it] was
harmed by the [product] that [he/she/nonbinary pronoun/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
2. That, at the time of purchase, [name of defendant] was in the
business of selling these goods [or by [his/her/nonbinary pronoun/
its] occupation held [himself/herself/nonbinary pronoun/itself] out
as having special knowledge or skill regarding these goods];
3. That the [product] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
3. [was not fit for the ordinary purposes for which such goods are
3. [did not conform to the quality established by the parties’ prior
dealings or by usage of trade;]
3. [other ground as set forth in California Uniform 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,
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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
Implied Warranty of Merchantability. California Uniform Commercial Code
section 2314.
Customary Dealings of Parties. California Uniform Commercial Code section
“Merchant” Defined. California Uniform Commercial Code section 2104(1).
“Goods” Defined. California Uniform Commercial Code section 2105(1).
“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.)
“[I]n 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].)
“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 purchasers 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.,
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 51
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31-2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
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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, § 206.63 et seq. (Matthew
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