California Civil Jury Instructions (CACI)

3210. Breach of Implied Warranty of Merchantability - Essential Factual Elements

[Name of plaintiff] claims that the [consumer good] did not have the quality that a buyer would reasonably expect. This is known as "breach of an implied warranty." To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] bought a[n] [consumer good] [from/ manufactured by] [name of defendant];

2. That at the time of purchase [name of defendant] was in the business of [selling [consumer goods] to retail buyers] [manufacturing [consumer goods]]; and

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

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

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

[was not adequately contained, packaged, and labeled;] [or]

[did not measure up to the promises or facts stated on the container or label.]

Directions for Use

If remedies are sought under the Commercial Code, the plaintiff may be required to prove reasonable notification within a reasonable time. (Cal. U. Com. Code, § 2607(3).) If the court determines such proof is necessary, add the following element to this instruction:

That [name of plaintiff] took reasonable steps to notify [name of defendant] within a reasonable time that the [consumer good] did not have the quality that a buyer would reasonably expect;

See also CACI No. 1243, Notification/Reasonable Time. Instructions on damages and causation may be necessary in actions brought under the Commercial Code.

Delete element 2 if the defendant is the manufacturer of the consumer good in question or if it is uncontested that the defendant was a retail seller within the meaning of the act.

If appropriate to the facts, add: "It is not necessary for [name of plaintiff] to prove the cause of a defect of the [consumer good]." The Song-Beverly Consumer Warranty Act does not require a consumer to prove the cause of the defect or failure, only that the consumer good "did not conform to the express warranty." (See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8 [109 Cal.Rptr.2d 583].)

In addition to sales of consumer goods, the Consumer Warranty Act applies to leases—see Civil Code sections 1791(g)-(i) and 1795.4. This instruction may be modified for use in cases involving the implied warranty of merchantability in a lease of consumer goods.

Sources and Authority

Civil Code section 1794(a) provides: "Any buyer of consumer goods who is damaged by a failure to comply with any obligation . . . under an implied . . . warranty . . . may bring an action for the recovery of damages and other legal and equitable relief."

Civil Code section 1791.1(a) provides:

"Implied warranty of merchantability" . . . means that the consumer goods meet each of the following:

(1) Pass without objection in the trade under the contract description.

(2) Are fit for the ordinary purposes for which such goods are used.

(3) Are adequately contained, packaged, and labeled.

(4) Conform to the promises or affirmations of fact made on the container or label.

Civil Code section 1792 provides, in part: "Unless disclaimed in the manner prescribed by [the act], every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable. The retail seller shall have a right of indemnity against the manufacturer in the amount of any liability under this section."

Commercial Code section 2714(2) provides: "The measure of damages for breach of warranty is the difference at the time and place of cceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount."

"Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. . . . [D]efendants' liability for an implied warranty does not depend upon any specific conduct or promise on their part, but instead turns upon whether their product is merchantable under the code." (Hauter v. Zogarts (1975) 14 Cal.3d 104, 117 [120 Cal.Rptr. 681, 534 P.2d 377], internal citations omitted.)

"Unless specific disclaimer methods are followed, an implied warranty of merchantability accompanies every retail sale of consumer goods in the state." (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39 Cal.Rptr.2d 159].)

The implied warranty of merchantability "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 citation omitted.)

"The question of reimbursement or replacement is relevant only under [Civil Code] section 1793.2. . . . [T]his section applies only when goods cannot be made to conform to the 'applicable express warranties.' It has no relevance to the implied warranty of merchantability." (Music Acceptance Corp., supra, 32 Cal.App.4th at p. 620.)

Civil Code section 1791.1(d) provides, in part: "Any buyer of consumer goods injured by a breach of the implied warranty of merchantability . . . has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, [Civil Code] Section 1794 . . . shall apply."

"The Song-Beverly Act incorporates the provisions of [Commercial Code] sections 2314 and 2315. It 'supplements, rather than supersedes, the provisions of the California Uniform Commercial Code' by broadening a consumer's remedies to include costs, attorney's fees, and civil penalties." (American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1295, fn. 2, internal citation omitted.)

Civil Code section 1794(b) provides, in part:

The measure of the buyer's damages in an action under this section shall include . . . the following:

(1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.

(2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.

Commercial Code section 2714(1) provides: "Where the buyer has accepted goods and given notification (subdivision (3) of Section 2607) he or she may recover, as damages for any nonconformity of tender, the loss resulting in the ordinary course of events from the seller's breach as determined in any manner that is reasonable."

"The notice requirement of [former Civil Code] section 1769 . . . is not an appropriate one for the court to adopt in actions by injured consumers against manufacturers with whom they have not dealt. 'As between the immediate parties to the sale [the notice requirement] is a sound commercial rule, designed to protect the seller against unduly delayed claims for damages. As applied to personal injuries, and notice to a remote seller, it becomes a booby-trap for the unwary.' " (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27 Cal.Rptr. 697, 377 P.2d 897], internal citations omitted.)

Secondary Sources

3 Witkin, Summary of California Law (9th ed. 1987) Sales, §§ 67-68

1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, §§ 3.21- 3.23, 3.25-3.26

2 California UCC Sales & Leases (Cont.Ed.Bar 2002) Leasing of Goods, §§ 19.31-19.32

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31[2][a] (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51 (Matthew Bender)

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

5 Bancroft-Whitney's California Civil Practice: Business Litigation (1993) Consumer Warranties, §§ 53:5-53:7, 53:31, pp. 11-13, 38-39

(Revised December 2005)