Colorado § 4-2-313 - Express warranties by affirmation, promise, description, sample.

§ 4-2-313. Express warranties by affirmation, promise, description, sample.

(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.

Source: L. 65: p. 1310, § 1. C.R.S. 1963: § 155-2-313.

Cross references: For warranties relating to motor vehicles, see article 10 of title 42.

ANNOTATION

I. General Consideration.

III. Formal Words not Necessary.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Contracts", see 34 Dicta 85 (1957). For note, "Privity of Contract and the Breach of Warranty Action", see 35 U. Colo. L. Rev. 232 (1963).

The several types of warranties coexist. Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307 (10th Cir. 1973).

Lessee as third party beneficiary to warranties. Although a lessee of a machine does not directly receive the benefits of the warranties made by the seller to the lessor, the lessee may be a third party beneficiary of such warranties who could "reasonably be expected to use, consume, or be affected by the goods". Lease Fin., Inc. v. Burger, 40 Colo. App. 107, 575 P.2d 857 (1977).

Warranty's existence or breach for trier of fact. The question of the existence of a warranty and whether that warranty was breached is ordinarily one for the trier of fact. Stroh v. Am. Recreation & Mobile Home Corp., 35 Colo. App. 196, 530 P.2d 989 (1975); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Warranty applicable to heating system which was moved into buyers' residence for installation and later removed. Thomas v. Bove, 687 P.2d 534 (Colo. App. 1984).

Cause of action generally accrues at purchase. Normally, a cause of action for the breach of an express warranty accrues at the time of the purchase of the goods. Glen Peck, Ltd. v. Fritsche, 651 P.2d 414 (Colo. App. 1981).

Express warranty may explicitly extend to future performance. Glen Peck, Ltd. v. Fritsche, 651 P.2d 414 (Colo. App. 1981).

Unreasonable use most common defense. The most common accepted affirmative defense to a warranty claim is unreasonable use of the product by the plaintiff with knowledge of the defective condition and the risk it creates. This defense bears a resemblance to the negligence doctrine of assumption of risk. Hensley v. Sherman Car Wash Equip. Co., 33 Colo. App. 279, 520 P.2d 146 (1974).

For discussion of the distinction between liability in contract for breach of warranty and strict tort liability for product misrepresentation, see Am. Safety Equip. Corp. v. Winkler, 640 P.2d 216 (Colo. 1982).

Contributory negligence not defense. The concept of contributory negligence, as it is known in negligence case law and as distinct from the doctrine of assumption of risk, has no place in actions premised on breach of warranty. Hensley v. Sherman Car Wash Equip. Co., 33 Colo. App. 279, 520 P.2d 146 (1974).

Applied in Caldwell v. Kats, 38 Colo. App. 156, 555 P.2d 190 (1976); Hummel v. Skyline Dodge, Inc., 41 Colo. App. 572, 589 P.2d 73 (1978); Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986); Molina v. Ford Motor Co., 441 F. Supp. 3d 1176 (D. Colo. 2020); Pawa Box Sales Grp. v. Roofer Elecs. Tech. (Shanwei) Co., 754 F. Supp. 3d 1081 (D. Colo. 2024).

II. EXPRESS WARRANTIES.

A. Affirmation or Promise.

B. Description.

C. Sample.

A. Affirmation or Promise.

Annotator's note. Since § 4-2-313(1)(a) is similar to repealed § 121-1-12, C.R.S. 1963, and § 121-1-12, CRS 53 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.

Evidence sufficient for submission of instruction to jury. Evidence pertaining to manufacturer's brochure which was considered by plaintiff in connection with the purchase of a bumper jack was sufficient to warrant submission of an instruction on express warranty to the jury. Kinard v. Coats Co., 37 Colo. App. 555, 553 P.2d 835 (1976).

Evidence pertaining to statements contained in literature printed by the manufacturer of an intrauterine device and statements by the manufacturer's representatives which were considered by the plaintiff and her physician in making the decision to use the product was sufficient to warrant submission of an instruction on express warranty to the jury. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Ample evidence to allow claim for breach of express warranty to go to the jury where tags attached to fuel controls indicated that the controls were inspected and accepted in accordance with original manufacturer's latest methods procedures and specifications and the certificate of conformance accompanying the fuel controls stated that the controls were "as is tested/repaired to the original equipment manufacturer's specification requirements" and uncontested testimony at trial indicated that the fuel controls did not function properly at altitudes well below those called for in the internal specifications. Pegasus Helicopters, Inc. v. United Technologies Corp., 35 F.3d 507 (10th Cir. 1994).

An express warranty may be inferred from an affirmation of a fact or a promise by the seller which induces the purchase, on which the buyer relies, and on which the seller intended that he should so do. Duncan v. Bd. of County Comm'rs, 154 Colo. 447, 391 P.2d 368 (1964).

An averment at the time of the sale is a warranty provided the jury finds from the evidence on the trial it was so intended. Such intention may be reached as an inference or deduction from the facts or circumstances in connection with all the evidence on the trial, and when such deduction is made, if it rests upon proper and sufficient evidence, it becomes proof as a fact of warranty. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956).

There can be no operative warranty unless it be affirmatively shown that the buyer relied on the affirmation of fact or promise of the seller. The affirmation asserted as a warranty must have been operative in causing the sale and must have been understood by the buyer as being intended as part of the contract. It need not, however, have been the sole inducement to the purchase, nor need the buyer actually have been deceived by the statement. Only such reliance is required as is necessary in contracts generally, and where a representation has entered into the contract as an intended element thereof and as a part of the consideration, the requirement that it be an inducement in order to be operative as a warranty is fully satisfied. Duncan v. Bd. of County Comm'rs, 154 Colo. 447, 391 P.2d 368 (1964).

There is no duty on the buyer of goods who purchases with an express warranty to inspect the article purchased, or to exercise care in discovering any defects, or to investigate the truth of the seller's statements; rather, he may rely on the contract of the seller for the delivery of goods which satisfy the warranty, except that the contract may expressly provide for an inspection or test to be made by the purchaser as a condition. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956).

The maxim "caveat emptor" has no application to matters included in an express warranty, and even where the buyer has an equal opportunity with the seller to form his own judgment as to the character and condition of the property he may receive and rely on a warranty instead; opportunity on the part of the buyer to inspect does not militate against the availability of an express warranty in the sale. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956).

Where an expressed warranty is given, the buyer is not precluded from relying upon it, unless his investigation reveals the defect. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956).

Even though the buyer makes an inspection the warranty is not rendered inoperative unless the buyer is clearly relying upon his own investigation and waives the warranty; investigation is compatible with the giving of an express warranty. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956); Norton v. Lindsay, 350 F.2d 46 (10th Cir. 1965).

Writing does not exclude undertaking by seller. Where a letter addressed to the buyer and signed by the seller described a machine, but did not include a provision as to its ability to produce, then, nevertheless, where it appeared that there were numerous conversations between the parties and that the buyer fully explained to the seller the machine was to be used on a mass production basis and its intricacies were also made known to the seller from the beginning, it cannot be said that the writing excluded undertakings by the seller in the light of the buyer's requirements that the seller produce a machine which would fulfill specific needs. Comet Indus., Inc. v. Best Plastic Container Corp., 222 F. Supp. 723 (D. Colo. 1963).

Testimony that the seller specifically "guaranteed" or "promised" that an article would work satisfactorily and that it was clearly understood by all that the seller would get paid if, and only if, the article functioned properly clearly supported the finding of an express warranty. Duncan v. Bd. of County Comm'rs, 154 Colo. 447, 391 P.2d 368 (1964).

The word "sound" when used with reference to many animals and especially a horse has a special and particular connotation. The statement that a horse is "sound" implies "the absence of any defect or disease which will impair the animal's natural usefulness for the purpose for which it is purchased." Norton v. Lindsay, 350 F.2d 46 (10th Cir. 1965).

An express warranty by a sales agent imposes liability on the salesman, but not the manufacturer, where the terms of the warranty as to safety exceeded the agent's authority. Senter v. B.F. Goodrich Co., 127 F. Supp. 705 (D. Colo. 1954).

No express warranty was created by language in automobile manufacturer's publication which was merely the seller's opinion of the goods rather than an affirmation of fact or promise. Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986).

No form of disclaimer will be allowed a seller to disclaim the known true nature of an item to be sold. Olson Mfg. Co. v. Roberts, 131 Colo. 152, 280 P.2d 433 (1955).

B. Description.

Annotator's note. Since § 4-2-313(1)(b) is similar to repealed § 121-1-14, C.R.S. 1963, and CSA, C. 143A, § 14 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.

Where an order is in writing and describes the goods, it is clear that the parties consummated a "sale of goods by description", as those words are used in this section. Lindsey v. Stalder, 120 Colo. 58, 208 P.2d 83 (1949).

But where one orders a product and directs that the character thereof be changed before delivery, but no one can say whether the shipment was properly sent as initially described, then there is no evidence to support a judgment under this section. Lindsey v. Stalder, 120 Colo. 58, 208 P.2d 83 (1949).

Applied in Eggen v. M. & K. Trailers & Mobile Home Brokers, Inc., 29 Colo. App. 177, 482 P.2d 435 (1971); Universal Drilling Co. v. Camay Drilling Co., 737 F.2d 869 (10th Cir. 1984).

C. Sample.

No sale by sample where buyer does not rely on seller. Where the seller exhibited a small sample of a finished product, stating "here is what it looks like", and the buyer orders rough product in reliance on its own employees' evaluation, the sale was not a sale by sample carrying the warranty that the bulk should correspond to the sample. Lindsey v. Stalder, 120 Colo. 58, 208 P.2d 83 (1949) (decided under repealed CSA, C. 143A, § 16, uniform sales act).

III. FORMAL WORDS NOT NECESSARY.

Annotator's note. Since § 4-2-313(2) is similar to repealed § 121-1-12, C.R.S. 1963, and § 121-1-12, CRS 53 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.

An express warranty need not be in any particular form. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956); Comet Indus., Inc. v. Best Plastic Container Corp., 222 F. Supp. 723 (D. Colo. 1963).

No special form of words is necessary to create a warranty. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956); Norton v. Lindsay, 350 F.2d 46 (10th Cir. 1965).

To constitute an express warranty the term "warrant" need not be used, as no technical set of words is required. Duncan v. Bd. of County Comm'rs, 154 Colo. 447, 391 P.2d 368 (1964).

Warranties not confined to affirmations in written agreements. Express warranties are not confined only to affirmations of fact contained in the written agreement between the parties. Colorado-Ute Elec. Ass'n v. Envirotech Corp., 524 F. Supp. 1152 (D. Colo. 1981).

Promotional literature and correspondence are part of basic bargain. Express warranties made by the seller in promotional literature and correspondence sent to the buyer before a sale was made are part of the basic bargain between buyer and seller. Colorado-Ute Elec. Ass'n v. Envirotech Corp., 524 F. Supp. 1152 (D. Colo. 1981); Lutz Farm v. Asgrow Seed Co., 948 F.2d (10th Cir. 1991).

Corporation's dissemination of information qualified as warranties. Where a corporation disseminated information using advertising materials, trade publications, or technical publications and oral statements representing the quality of its product, this activity qualifies in law as warranties. Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307 (10th Cir. 1973).

Unnecessary to prove scienter. At common law, in an action for breach of an express warranty, it was unnecessary to allege or prove a scienter, and the uniform commercial code does not change this rule. Kensair Corp. v. Peltier, 28 Colo. App. 290, 472 P.2d 700 (1970).

Good faith and lack of knowledge do not constitute defenses. Where there is a breach of an express warranty, neither the fact that the seller acted in good faith nor the fact that the seller made the warranty without knowledge of its falsity constitute a defense. Kensair Corp. v. Peltier, 28 Colo. App. 290, 472 P.2d 700 (1970).

No particular reliance by buyer on affirmation of goods must be shown before such statement made by seller is considered an express warranty. Lutz Farms v. Asgrow Seed Co., 948 F.2d (10th Cir. 1991).