Oftentimes our clients hire us to resolve interesting questions and problems. Here is a recent one that addresses the issue of express warranties:
Dear Good Georgia Lawyer,
Recently I bought a used boat from a boat shop off of Ebay from a boat shop dealer. They advertised in writing: "This boat is off my front line and it needs nothing but a new home!!. . . Has undergone a 125 point inspection. . Great Boat!. . . I do not sell any boats from my dealership that have issues and problems." As soon as the boat arrived from the seller at my home on Lake Lanier, I turned the ignition on and it immediately caught on fire. Do I have a claim for breach of express warranty in Georgia?"
Under O.C.G.A. §11-2-313, express warranties by the seller are created by "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," or "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." Moreover, 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. Defendants breached their express warranty to you in particular, that: "This boat is off my front line and it needs nothing but a new home!!. . . Has undergone a 125 point inspection. . Great Boat!. . . I do not sell any boats from my dealership that have issues and problems." Notwithstanding such warranty, the boat did have issues and problems catching on fire as soon as the ignition was turned on. It would be important to have an expert fire inspector identify the cause and origin from this fire to determine that would have clearly been identified in a thorough 125 point inspection. Based on the facts as you have thus shared, it does sound that the express warranty was in fact breached.
The law states that expressly warranted statements by the Defendants cannot be negated even by any other warranty disclaimer. E.g. City Dodge, Inc. v. Gardnere , 232 Ga. 766, 208 S.E.2d 794 (1974). In City Dodge, Inc. v. Gardnere the Georgia Supreme Court held that an express warranty that the car dealer had made "that the car had not been wrecked" was not negated even though the car dealer sold the car "as is" in the purchase agreement. Moreover, the courts have also held that it is unreasonable to allow an express warranty to be negated by disclaimer of warranty in the same contract. Century Dodge, Inc. v. Mobley, 155 Ga. App. 712, 272 S.E.2d 502 (1980). Consequently, the express warranty could not have been disclaimed regardless and a breach very likely occurred.
Contact Williams Oinonen LLC for more information on contracts and warranties.