CACI 1231 Implied Warranty of Merchantability—Essential Factual Elements

California Civil Jury Instructions CACI

1231 Implied Warranty of Merchantability—Essential Factual Elements

[Name of plaintiff] [also] claims that [he/she/nonbinary pronoun/it] was harmed by the [product] that [he/she/nonbinary pronoun/it] bought from [name of defendant] because the [product] did not have the quality that a buyer would expect. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] bought the [product] from [name of defendant];

2.That, at the time of purchase, [name of defendant] was in the business of selling these goods [or by [his/her/nonbinary pronoun/its] occupation held [himself/herself/nonbinary pronoun/itself] out as having special knowledge or skill regarding these goods];

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

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

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

[did not conform to the quality established by the parties’ prior dealings or by usage of trade;]

[other ground as set forth in California Uniform Commercial Code section 2314(2);]

4.[That [name of plaintiff] took reasonable steps to notify [name of defendant] within a reasonable time that the [product] did not have the expected quality;]

5.That [name of plaintiff] was harmed; and

6.That the failure of the [product] to have the expected quality was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

This cause of action could also apply to products that are leased. If so, modify the instruction accordingly.

The giving of notice to the seller is not required in personal injury or property damage lawsuits against a manufacturer or another supplier with whom the plaintiff has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)

If an instruction on the giving of notice to the seller is needed, see CACI No. 1243, Notification/Reasonable Time.

Sources and Authority

Implied Warranty of Merchantability. California Uniform Commercial Code section 2314.

Customary Dealings of Parties. California Uniform Commercial Code section 1303.

“Merchant” Defined. California Uniform Commercial Code section 2104(1).

“Goods” Defined. California Uniform Commercial Code section 2105(1).

“A warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or their quality or quantity.” (4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51.)

“Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. It 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 citations omitted.)

“[I]n cases involving personal injuries resulting from defective products, the theory of strict liability in tort has virtually superseded the concept of implied warranties.” (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 432 [79 Cal.Rptr. 369].)

“Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranties of fitness and merchantability.” (United States Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279 Cal.Rptr. 533], internal citations omitted.)

Although privity appears to be required for actions based upon the implied warranty of merchantability, there are exceptions to this rule, such as one for members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr. 863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she leases or negotiates the sale or lease of the product. (United States Roofing, Inc., supra.)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 51
California Products Liability Actions, Ch. 2, Liability for Defective Products, §§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, §§ 502.24, 502.51, 502.200–502.214 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.63 et seq. (Matthew Bender)