Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [55-2-316 NMSA 1978] an implied warranty that the goods shall be fit for such purpose.

OFFICIAL COMMENTS

1. UCC Official Comments © by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
2. Prior uniform statutory provision. — Section 15(1), (4), (5), Uniform Sales Act.
3. Changes. — Rewritten.
4. 1. Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting. Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller's skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.
5. 2. A "particular purpose" differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.
6. A contract may of course include both a warranty of merchantability and one of fitness for a particular purpose.
7. The provisions of this article on the cumulation and conflict of express and implied warranties must be considered on the question of inconsistency between or among warranties. In such a case any question of fact as to which warranty was intended by the parties to apply must be resolved in favor of the warranty of fitness for particular purpose as against all other warranties except where the buyer has taken upon himself the responsibility of furnishing the technical specifications.
8. 3. In connection with the warranty of fitness for a particular purpose the provisions of this article on the allocation or division of risks are particularly applicable in any transaction in which the purpose for which the goods are to be used combines requirements both as to the quality of the goods themselves and compliance with certain laws or regulations. How the risks are divided is a question of fact to be determined, where not expressly contained in the agreement, from the circumstances of contracting, usage of trade, course of performance and the like, matters which may constitute the "otherwise agreement" of the parties by which they may divide the risk or burden.
9. 4. The absence from this section of the language used in the Uniform Sales Act in referring to the seller, "whether he be the grower or manufacturer or not," is not intended to impose any requirement that the seller be a grower or manufacturer. Although normally the warranty will arise only where the seller is a merchant with the appropriate "skill or judgment," it can arise as to nonmerchants where this is justified by the particular circumstances.
10. 5. The elimination of the "patent or other trade name" exception constitutes the major extension of the warranty of fitness which has been made by the cases and continued in this article. Under the present section the existence of a patent or other trade name and the designation of the article by that name, or indeed in any other definite manner, is only one of the facts to be considered on the question of whether the buyer actually relied on the seller, but it is not of itself decisive of the issue. If the buyer himself is insisting on a particular brand he is not relying on the seller's skill and judgment and so no warranty results. But the mere fact that the article purchased has a particular patent or trade name is not sufficient to indicate nonreliance if the article has been recommended by the seller as adequate for the buyer's purposes.
11. 6. The specific reference forward in the present section to the following section on exclusion or modification of warranties is to call attention to the possibility of eliminating the warranty in any given case. However, it must be noted that under the following section the warranty of fitness for a particular purpose must be excluded or modified by a conspicuous writing.
12. Point 2: Sections 2-314 and 2-317.
13. Point 3: Section 2-303.
14. Point 6: Section 2-316.
15. "Buyer". Section 2-103.
16. "Goods". Section 2-105.
17. "Seller". Section 2-103.

History: 1953 Comp., § 50A-2-315, enacted by Laws 1961, ch. 96, § 2-315.

ANNOTATIONS

Cross references. — For warranty against serum hepatitis not implied in blood transfusions, see 24-10-5 NMSA 1978.

When no warranty generally. — There is no implied warranty where rancher at all times exercised his own skill and judgment in the selection of the cattle he wanted from the herd and he did not rely on other ranchers. Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972).

Where no express representations are made, and buyer does not tell seller what his plans are for the cattle he purchases and there is no discussion of the kind of ranching activity involved, an implied warranty of fitness for a particular purpose does not exist. Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972).

No defect required. — Products liability requires a defect; the implied warranty of fitness for a particular purpose does not require a defect. 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.

Hospital's reliance on purchased prosthesis extends to surgeon. — Where a hospital purchases a prosthesis from a manufacturer and supplies that prosthesis to a surgeon for use, the warranty of fitness for a particular purpose does not require that the manufacturer have actual knowledge that the prosthesis would be implanted in a particular patient nor that the surgeon rely on the manufacturer's skill or judgment. Evidence that the hospital purchased the prosthesis from the manufacturer for use as an implant is evidence of the hospital's reliance; the hospital's reliance extends to the surgeon, who is in the distributive chain. 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.

Knowledge of end use of steel. — The manufacturer of steel for a tube used in a light-gas gun could not be held liable for breach of implied warranty because there was no evidence that the manufacturer knew the purpose for which the steel was to be used. Spectron Dev. Lab. v. American Hollow Boring Co., 1997-NMCA-025, 123 N.M. 170, 936 P.2d 852.

No reliance on manufacturer's expertise. — The manufacturer that bored and finished a tube used in a light-gas gun could not be held liable for breach of implied warranty because the owner of the gun, the expert in the country regarding production of such guns, did not rely on the manufacturer's expertise in selecting the specifications for the tube. Spectron Dev. Lab. v. American Hollow Boring Co., 1997-NMCA-025, 123 N.M. 170, 936 P.2d 852.

Refusal to provide warranted service. — A seller's refusal to provide warranted service perfects a cause of action for breach of contract, subject to the statutory time limit for filing an action. Lieb v. Milne, 1980-NMCA-125, 95 N.M. 716, 625 P.2d 1233.

Expiration of warranty period not bar to action. — The expiration of the term of a written warranty period is not a jurisdictional bar to an action for breach of implied warranties. Lieb v. Milne, 1980-NMCA-125, 95 N.M. 716, 625 P.2d 1233.

Breach of the implied warranty of fitness for a particular purpose. — To prove a breach of the implied warranty of fitness for a particular purpose, a plaintiff must prove that at the time of contracting, the seller had reason to know the buyer's particular purpose for which the item was being ordered, that the buyer relied on the seller's skill or judgment, and that the item was not fit for that purpose. American Mechanical Solutions L.L.C v. Northland Process Pipe, Inc., 184 F.Supp.3d 1030 (D.N.M 2016).

Expert testimony not required to prove breach of the implied warranty of fitness for a particular purpose. — Where defendants entered into a contract with plaintiff to supply custom-fit hoses and fittings of a certain grade and quality for installation at the southwest cheese company, and where, immediately after extensive installation, the hoses began to fail, and where plaintiff alleged a breach of the implied warranty of fitness for a particular purpose but provided no expert testimony that defendants caused the harm which it alleges to have suffered, defendants were not entitled to summary judgment because New Mexico generally requires expert testimony when the issue of causation is presented in a context which is not a matter of common knowledge, but neither causation nor proximate causation is a prima facie element for a breach of the implied warranty of fitness for a particular purpose. American Mechanical Solutions L.L.C v. Northland Process Pipe, Inc., 184 F.Supp.3d 1030 (D.N.M 2016).

Law reviews. — For comment, "The Miller Act in New Mexico - Materialman's Right to Recover on Prime's Surety Bond in Public Works Contracts - Notice as Condition Precedent to Action," see 9 Nat. Resources J. 295 (1969).

For article, "New Mexico's 'Lemon Law': Consumer Protection or Consumer Frustration?", see 16 N.M.L. Rev. 251 (1986).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Guaranty § 13; 63 Am. Jur. 2d Products Liability §§ 470 to 508.

Implied warranty by other than packer of fitness of food sold in sealed cans, 9 A.L.R. 1269, 90 A.L.R. 1269, 142 A.L.R. 1434.

Chain, cable or wire, implied warranty of strength or fitness, 59 A.L.R. 1235.

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

Implied warranty of quality, condition or fitness on sale of "job lot," "leftovers," and the like, 103 A.L.R. 1347.

Cosmetics, implied warranty by retailer, 131 A.L.R. 123.

Implied warranty of reasonable fitness of food for human consumption as breached by substance natural to the original product and not removed in processing, 143 A.L.R. 1421.

Secondhand article, sale of, implied warranty of quality, condition or fitness, 151 A.L.R. 446.

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

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

Seller's or manufacturer's liability for injuries as affected by buyer's or user's allergy or unusual susceptibility to injury from the article, 26 A.L.R.2d 963.

Existence and scope of implied warranty of fitness on sale of livestock, 53 A.L.R.2d 892.

Implied warranty of fitness by manufacturer or seller of medical or health supplies, appliances or equipment, 79 A.L.R.2d 401.

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.

Elements and measure of damages for breach of warranty in sale of horse, 91 A.L.R.3d 419.

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

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.

Liability of blood supplier or donor for injury or death resulting from blood transfusion, 24 A.L.R.4th 508.

Recovery, under strict liability in tort, for injury or damage caused by defects in building or land, 25 A.L.R.4th 351.

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.

Applicability of warranty of fitness under UCC § 2-315 to supplies or equipment used in performance of a service contract, 47 A.L.R.4th 238.

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

Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.

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

Products liability: theatrical equipment and props, 42 A.L.R.5th 699.

Liability on implied warranties in sale of used motor vehicle, 47 A.L.R.5th 677.

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

Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473.

Products liability: paints, stains, and similar products, 69 A.L.R.5th 137.

Products liability: helicopters, 72 A.L.R.5th 299.

Products liability: consumer expectations test, 73 A.L.R.5th 75.

Products liability: ladders, 81 A.L.R.5th 245.

77A C.J.S. Sales § 258 et seq.