1. (1) Express warranties by the seller are created as follows:

   1. (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;
   2. (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;
   3. (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. (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.

   OFFICIAL COMMENTS

3. UCC Official Comments © by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
4. Prior uniform statutory provision. — Sections 12, 14 and 16, Uniform Sales Act.
5. Changes. — Rewritten.
6. Purposes of changes. — To consolidate and systematize basic principles with the result that:
7. 1. "Express" warranties rest on "dickered" aspects of the individual bargain, and go so clearly to the essence of that bargain that words of disclaimer in a form are repugnant to the basic dickered terms. "Implied" warranties rest so clearly on a common factual situation or set of conditions that no particular language or action is necessary to evidence them and they will arise in such a situation unless unmistakably negated.
8. This section reverts to the older case law insofar as the warranties of description and sample are designated "express" rather than "implied".
9. 2. Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents. The provisions of Section 2-318 on third party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left to the case law with the intention that the policies of this act may offer useful guidance in dealing with further cases as they arise.
10. 3. The present section deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. 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. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.
11. 4. In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller's obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming "all warranties, express or implied" cannot reduce the seller's obligation with respect to such description and therefore cannot be given literal effect under Section 2-316.
12. This is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish. But in determining what they have agreed upon, good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation.
13. 5. Paragraph (1) (b) makes specific some of the principles set forth above when a description of the goods is given by the seller.
14. A description need not be by words. Technical specifications, blueprints and the like can afford more exact description than mere language and if made part of the basis of the bargain goods must conform with them. Past deliveries may set the description of quality, either expressly or impliedly by course of dealing. Of course, all descriptions by merchants must be read against the applicable trade usages with the general rules as to merchantability resolving any doubts.
15. 6. The basic situation as to statements affecting the true essence of the bargain is no different when a sample or model is involved in the transaction. This section includes both a "sample" actually drawn from the bulk of goods which is the subject matter of the sale, and a "model" which is offered for inspection when the subject matter is not at hand and which has not been drawn from the bulk of the goods.
16. Although the underlying principles are unchanged, the facts are often ambiguous when something is shown as illustrative, rather than as a straight sample. In general, the presumption is that any sample or model just as any affirmation of fact is intended to become a basis of the bargain. But there is no escape from the question of fact. When the seller exhibits a sample purporting to be drawn from an existing bulk, good faith of course requires that the sample be fairly drawn. But in mercantile experience the mere exhibition of a "sample" does not of itself show whether it is merely intended to "suggest" or to "be" the character of the subject-matter of the contract. The question is whether the seller has so acted with reference to the sample as to make him responsible that the whole shall have at least the values shown by it. The circumstances aid in answering this question. If the sample has been drawn from an existing bulk, it must be regarded as describing values of the goods contracted for unless it is accompanied by an unmistakable denial of such responsibility. If, on the other hand, a model of merchandise not on hand is offered, the mercantile presumption that it has become a literal description of the subject matter is not so strong, and particularly so if modification on the buyer's initiative impairs any feature of the model.
17. 7. The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order (Section 2-209).
18. 8. Concerning affirmations of value or a seller's opinion or commendation under Subsection (2), the basic question remains the same: What statements of the seller have in the circumstances and in objective judgment become part of the basis of the bargain? As indicated above, all of the statements of the seller do so unless good reason is shown to the contrary. The provisions of Subsection (2) are included, however, since common experience discloses that some statements or predictions cannot fairly be viewed as entering into the bargain. Even as to false statements of value, however, the possibility is left open that a remedy may be provided by the law relating to fraud or misrepresentation.
19. Point 1: Section 2-316.
20. Point 2: Sections 1-102(3) and 2-318.
21. Point 3: Section 2-316(2) (b).
22. Point 4: Section 2-316.
23. Point 5: Sections 1-205(4) and 2-314.
24. Point 6: Section 2-316.
25. Point 7: Section 2-209.
26. Point 8: Section 1-103.
27. "Buyer". Section 2-103.
28. "Conforming". Section 2-106.
29. "Goods". Section 2-105.
30. "Seller". Section 2-103.

History: 1953 Comp., § 50A-2-313, enacted by Laws 1961, ch. 96, § 2-313.

ANNOTATIONS

I. GENERAL CONSIDERATION.

Catalog statements. — A limited warranty contained in a manufacturer's catalog may be considered part of the basis of the parties' bargain, so long as the purchaser received the catalog and had an opportunity to read the warranty. LWT, Inc. v. Childers, 19 F.3d 539 (10th Cir. 1994).

Any express warranty made with respect to surgeon would inure to patient's benefit on the basis that the surgeon is acting as the patient's agent in the use of a medical product. Perfetti v. McGhan Med., 1983-NMCA-032, 99 N.M. 645, 662 P.2d 646, cert. denied, 99 N.M. 644, 662 P.2d 645.

Insufficiency of evidence. — Where there is no evidence that either the terms of the rental agreement or the reference to "good tires" were part of the basis of the bargain by renters, the evidence was insufficient for the question of express warranty to be submitted to the jury. Stang v. Hertz Corp., 1971-NMCA-132, 83 N.M. 217, 490 P.2d 475, rev'd on other grounds, 1972-NMSC-031, 83 N.M. 730, 497 P.2d 732.

II. SELLER'S OPINION.

When seller's opinion not express warranty. — When a seller asserts a fact of which the buyer is ignorant, and the buyer relies on the assertion, the seller makes an express warranty, but when the seller merely states his opinion or his judgment upon a matter of which the seller has no special knowledge, or upon which the buyer may be expected to have an opinion and exercise his judgment, then the seller's statement does not constitute an express warranty. Lovington Cattle Feeders, Inc. v. Abbott Labs., 1982-NMSC-027, 97 N.M. 564, 642 P.2d 167.

When opinion amounts to warranty. — Even if a representative's statement amounts to an opinion, the opinion amounts to a warranty if the statement becomes a part of the basis of the bargain. Lovington Cattle Feeders, Inc. v. Abbott Labs., 1982-NMSC-027, 97 N.M. 564, 642 P.2d 167.

All circumstances considered in determining whether warranty exists. — All of the circumstances of a sale are to be considered when determining whether there was an express warranty or a mere expression of opinion. Lovington Cattle Feeders, Inc. v. Abbott Labs., 1982-NMSC-027, 97 N.M. 564, 642 P.2d 167.

III. AFFIRMATION OF FACTS.

When affirmations of facts express warranty. — Affirmations of facts do not amount to express warranties unless they are part of the basis of the bargain. Jones v. Minnesota Mining & Mfg. Co., 1983-NMCA-106, 100 N.M. 268, 669 P.2d 744.

Affirmation of fact consists of all of the language in the manufacturer's publication; the plaintiff cannot limit the express warranty issue to words taken out of context. Perfetti v. McGhan Med., 1983-NMCA-032, 99 N.M. 645, 662 P.2d 646, cert. denied, 99 N.M. 644, 662 P.2d 645.

Sufficient evidence of express warranty. — In an action for breach of contract, where plaintiff hired defendant to design and construct a replacement irrigation well on plaintiff’s property, and although a written contract was not executed, plaintiff’s understanding of the agreement, as told to him by defendant, was that defendant would construct a well that would be fully adequate for plaintiff’s irrigation purposes, that it would be capable of producing 2,500 to 3,000 gallons of water per minute, and that it would last at least fifty years, and where, after three-and-a-half years, the well stopped working, the district court did not err in finding an express warranty, because defendant’s assertions that the well would last fifty years supports the district court’s determination that defendant made the sort of affirmation that amounts to an express warranty and there is no legal requirement that an express warranty be in writing. Robey v. Parnell, 2017-NMCA-038.

No independent "reliance" requirement as to affirmation of fact. — If there is an affirmation of fact which is a part of the basis of the bargain, there is no independent "reliance" requirement as to that affirmation of fact. Perfetti v. McGhan Med., 1983-NMCA-032, 99 N.M. 645, 662 P.2d 646, cert. denied, 99 N.M. 644, 662 P.2d 645.

User must be aware of manufacturer's warning, or no express warranty. — Where a user is not aware of a manufacturer's warning and the warning does not enter into his decision to use the manufacturer's product, the affirmation is not part of any bargain and there is no express warranty. Perfetti v. McGhan Med., 1983-NMCA-032, 99 N.M. 645, 662 P.2d 646, cert. denied, 99 N.M. 644, 662 P.2d 645.

Express warranty need not be specifically bargained for. — Where plaintiff brought an action against a medical device manufacturer and its distributor, alleging breach of implied and express warranties for an implantable filter, widely advertised and promoted by defendants as a safe and effective treatment for prevention of recurrent blood clots via placement in the inferior vena cava (IVC), which, after plaintiff’s physician implanted the filter, became embedded in plaintiff’s IVC and perforated the wall of her IVC, and where plaintiff alleged that, through her attending physicians, she relied on defendants’ representations in determining which IVC filter to use for implantation, and where defendants moved to dismiss the claims, arguing that the complaint did not specify the precise terms of an express warranty, defendants’ motion was denied because plaintiff alleged facts that showed an express warrant existed and that the express warranty became part of the basis of the bargain. Defendants’ advertising and promotion of the filter constituted an affirmation, promise, or even a description of the filter that it was a safe and effective treatment for prevention of recurrent pulmonary embolism via placement in the vena cava; the court could reasonably infer that such advertising and promotion entered into plaintiff’s decision, through her physicians, to purchase the filer for implantation. Suttman-Villars v. Argon Medical Devices, Inc., 553 F. Supp.3d 946 (D. N.M. 2021).

Law reviews. — For note, "Self-Help Repossession Under the Uniform Commercial Code: The Constitutionality of Article 9, Section 503," see 4 N.M. L. Rev. 75 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63 Am. Jur. 2d Products Liability §§ 1, 191 to 210, 450 to 527, 947 to 950.

Right of retailer to rely upon express or implied warranty by wholesaler or manufacturer where there is an express warranty to the consumer, 59 A.L.R. 1239.

Construction and effect of express or implied warranty on sale of an article intended for use as an explosive, 62 A.L.R. 1510.

Scope and effect of provision of Uniform Sales Act as to effect of express warranty or condition to negative implied warranty or condition, 64 A.L.R. 951.

Express warranty as excluding implied warranty of fitness, 164 A.L.R. 1321.

Warranties and conditions upon sale of seed, nursery stock, etc., 168 A.L.R. 581.

What amounts to "sale by sample" as regards implied warranties, 12 A.L.R.2d 524.

Time to inspect goods for compliance with warranty of fitness or merchantability, 52 A.L.R.2d 900.

Warranty of amount by contract for sale of commodity or goods wherein quantity is described as "about" or "more or less" than an amount specified, 58 A.L.R.2d 377.

Question whether oral statements amount to express warranty, as one of fact for jury or of law for court, 67 A.L.R.2d 619.

Construction and effect of affirmative provision in contract of sale by which purchaser agrees to take article in the condition in which it is, 24 A.L.R.3d 465.

Liability for representations and express warranties in connection with sale of used motor vehicle, 36 A.L.R.3d 125.

Sales: Liability for warranty or representation that article, other than motor vehicle, is new, 36 A.L.R.3d 237.

Products liability: stoves, 93 A.L.R.3d 99.

Measures of damages in action for breach of warranty of title to personal property under U.C.C. § 2-714, 94 A.L.R.3d 583.

What constitutes "affirmation of fact" giving rise to express warranty under U.C.C. § 2-313(1)(a), 94 A.L.R.3d 729.

Products liability: flammable clothing, 1 A.L.R.4th 251.

Products liability: fertilizers, insecticides, pesticides, fungicides, weed killers, and the like, or articles used in application thereof, 12 A.L.R.4th 462.

Products liability: stud guns, staple guns, or parts thereof, 33 A.L.R.4th 1189.

Computer sales and leases: breach of warranty, misrepresentation, or failure of consideration as defense or ground for affirmative relief, 37 A.L.R.4th 110.

Products liability: inconsistency of verdicts on separate theories of negligence, breach of warranty, or strict liability, 41 A.L.R.4th 9.

Affirmations or representations made after the sale is closed as basis of warranty under UCC § 2-313(1)(a), 47 A.L.R.4th 200.

Liability of successor corporation for punitive damages for injury caused by predecessor's product, 55 A.L.R.4th 166.

Computer sales and leases: time when cause of action for failure of performance accrues, 90 A.L.R.4th 298.

Products liability: roofs and roofing materials, 3 A.L.R.5th 851.

Validity, construction, and application of computer software licensing agreements, 38 A.L.R.5th 1.

Products liability: manufacturer's postsale obligation to modify, repair, or recall product, 47 A.L.R.5th 395.

Breach of warranty in sale, installation, repair, design, or inspection of septic or sewage disposal systems, 50 A.L.R.5th 417.

Products liability: computer hardware and software, 59 A.L.R.5th 461.

77A C.J.S. Sales § 242 et seq.