California Civil Jury Instructions (CACI) (2017)

1240. Affirmative Defense to Express Warranty—Not “Basis of Bargain”

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1240.Affirmative Defense to Express Warranty—Not “Basis of
[Name of defendant] is not responsible for any harm to [name of plaintiff]
if [name of defendant] proves that [his/her/its] [statement/description/
sample/model/other] was not a basis of the parties’ bargain.
The [statement/description/sample/model/other] is presumed to be a
basis of the bargain. To overcome this presumption, [name of defendant]
must prove that the resulting bargain was not based in any way on the
If [name of defendant] proves that [name of plaintiff] had actual
knowledge of the true condition of the [product] before agreeing to buy,
the resulting bargain was not based in any way on the
New September 2003; Revoked June 2010; Restored and Revised December 2010
Sources and Authority
• Creation of Express Warranties. California Uniform Commercial Code section
“The key under [California Uniform Commercial Code section 2313] is that the
seller’s statements—whether fact or opinion—must become ‘part of the basis of
the bargain.’ The 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. According to official comment 3 to
the Uniform Commercial Code following section 2313, ‘no particular reliance
. . . need be shown in order to weave [the seller’s affirmations of fact] into the
fabric of the agreement. Rather, any fact which is to take such affirmations,
once made, out of the agreement requires clear affirmative proof.’ ” (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 115 [120 Cal.Rptr. 681, 534 P.2d 377, internal
citations and footnote omitted.)
• “The California Supreme Court, in discussing the continued viability of the
reliance factor, noted that commentators have disagreed in regard to the impact
of this development. Some have indicated that it shifts the burden of proving
nonreliance to the seller, and others have indicated that the code eliminates the
concept of reliance altogether.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13,
22 [220 Cal.Rptr. 392], citing Hauter,supra, 14 Cal.3d at pp. 115–116.)
• “The official Uniform Commercial Code comment in regard to section 2-313
‘indicates that in actual practice affirmations of fact made by the seller about
the goods during a bargain are regarded as part of the description of those
goods; hence no particular reliance on such statements need be shown in order
to weave them into the fabric of the agreement.’ It is clear from the new
language of this code section that the concept of reliance has been purposefully
abandoned.” (Keith,supra, 173 Cal.App.3d at p. 23, internal citations omitted.)
• “The change of the language in section 2313 of the California Uniform
Commercial Code modifies both the degree of reliance and the burden of proof
in express warranties under the code. 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.)
• “[O]nce affirmations have been made, they are woven into the fabric of the
agreement and the seller must present ‘clear affirmative proof’ to remove them
from the agreement.” (Weinstat v. Dentsply International, Inc. (2010) 180
Cal.App.4th 1213, 1234 [103 Cal.Rptr.3d 614.)
• “[W]hile the basis of the bargain of course includes dickered terms to which the
buyer specifically assents, section 2313 itself does not suggest that express
warranty protection is confined to them such that affirmations by the seller that
are not dickered are excluded. Any affirmation, once made, is part of the
agreement unless there is ‘clear affirmative proof’ that the affirmation has been
taken out of the agreement.” (Weinstat,supra, 180 Cal.App.4th at p. 1229.)
• “The official comment to section 2313 is also instructive on this point,
providing: ‘The precise time when words of description or affirmation are made
. . . is not material. The sole question is whether the language . . . [is] fairly
to be regarded as part of the contract.’ Thus, the California Uniform
Commercial Code contemplates that affirmations, promises and descriptions
about the goods contained in product manuals and other materials that are given
to the buyer at the time of delivery can become part of the basis of the bargain,
and can be ‘fairly . . . regarded as part of the contract,’ notwithstanding that
delivery occurs after the purchase price has been paid.” (Weinstat,supra, 180
Cal.App.4th at p. 1230.)
• “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.)
• “First, . . . affirmations and descriptions in product literature received at the
time of delivery but after payment of the purchase price are, without more, part
of the basis of the bargain, period. Second, the seller’s right to rebut goes to
proof that extracts the affirmations from the ‘agreement’ or ‘bargain of the
parties in fact,’ not, as Keith would suggest, to proof that they were not an
inducement for the purchase. Relying on Keith, the court in effect equated the
concept of the ‘bargain in fact of the parties’ with the concept of reliance, but
. . . the two are not synonymous. Moreover, the opinion in Keith contradicts
itself on this matter. On the one hand the opinion states unequivocally that ‘[i]t
is clear’ section 2313 ‘purposefully abandoned’ the concept of reliance. On the
other hand, we must ask if section 2313 has eliminated the concept of reliance
from express warranty law all together, by what logic can reliance reappear, by
its absence, as an affirmative defense?” (Weinstat,supra, 180 Cal.App.4th at p.
1234, internal citation omitted.)
Secondary Sources
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.62
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 (Matthew Bender)
21 California Legal Forms, Ch. 52, Sales of Goods Under the Uniform Commercial
Code, § 52.290[1] (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or
Defending Action for Breach of Warranty, 24.36[4]
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)