The Unnecessary Warranty of Fitness for a Particular Purpose

Warranty law provides that if a seller makes “an affirmation of fact” about an attribute of a good, an express warranty is created upon its sale. But if the buyer specifies she wants a good with that same attribute, a warranty of fitness for a particular purpose is formed upon the sale. This distinction, without an analytical difference, can cause problems. Take the case where a dry cleaner wanted to use its existing steam cleaner to power a heating system for its store. It called a commercial heating company, explained its desires, and the heating company put in a system. The system didn’t work – it needed more steam than could be produced by the existing cleaner. The heating company, however, had effectively disclaimed the warranty of fitness in the contract. So the dry cleaner lost because only a fitness warranty was created when the buyer brought up the need to run the new system from the existing equipment, and fitness warranties can be disclaimed. But if the seller had promised with words that the heating system could be powered by the existing steamer, then the buyer would have received an express warranty, and the dry cleaner would have prevailed because it is almost impossible to disclaim an express warranty effectively under warranty law. Such analytical tap dancing is nonsense. The law in both cases should protect the legitimate expectation of the dry cleaner that the new heating system would be run by the existing steam unit, and no disclaimer should take that away. That result can be achieved by finding that the seller’s undertaking to supply a good in response to an expressed need of the buyer acts as an express promise that the goods will meet the buyer’s needs. In that way, what are now fitness cases can properly be treated as express warranty cases, and the fitness warranty can be eliminated as unnecessary. Express warranty is the proper theory because in both fitness and express warranty cases, the attribute of the good being warranted is expressed. In traditional express warranty cases it is expressed by the seller; in traditional fitness cases, it is expressed by the buyer. But it is expressed, and the act of the seller in furnishing goods that purportedly have that attribute is as much of a promise that the goods are suitable as if the attribute was promised in words. That is, it should make no difference if the seller promises that a dive watch is watertight down to 200 feet while she hands over the watch to the buyer, or the buyer asks for a dive watch that is watertight down to 200 feet and is handed the same watch by the seller. In both cases, the same contract is formed, and, in both cases, an express warranty that the watch can be used down to 200 feet is created. Further, eliminating the fitness warranty would have other beneficial consequences, such as: (1) eliminating the systemic problems that arise under implied warranty theory when a buyer’s “particular purpose” is the same as the good’s “ordinary purpose”; (2) more properly making a “fitness” warranty harder to disclaim, as in the dry cleaner case above; and (3) providing a correct parol evidence rule framework for what are now fitness cases.