California Civil Jury Instructions (CACI)
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 [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 [statement/description/sample/model/other].
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 [statement/description/sample/model/other].
Sources and Authority
- California Uniform 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.
- “The key under [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.)
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 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or Defending Action for Breach of Warranty, 24.36
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)