Implied Warranty of Merchantability for Defective Software
There may be an implied warranty that goods are reasonably fit. The Uniform Commercial Code (UCC) governs sales of goods and it provides:
Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; …nd
(c) are fit for the ordinary purposes for which such goods are used; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
The UCC applies to good and one issues whether software constitutes a good.
If the UCC applies, the question is then whether the software is defective. Expert testimony and other evidence may be needed to show a defect and that problems are due to defective software rather than other causes.
Breach of Express Warranty for Software Defect
Sometimes a seller may give an express warranty. The typical express warranty states it will repair goods for a specified period of time like two years. Breach of express warranties can be brought if the seller fails to satisfactorily repair the product.
Another type of express warranty claim is possible. UCC 2-313 states:
“Express warranties by the seller are created as follows:
(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.
(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.
(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) 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.”
Warranty Disclaimers Disclaimers may be enforced. A disclaimer of any implied warranty may be part of a disclosure or contract in a commercial setting. Disclaimers of express warranties are more difficult. The UCC attempts to harmonize express warranties and disclaimers.
Monetary Threshold Issues.
Legal issues arise, and some lawyers will be unable to handle a claim involving software costing less than $1,000. Class actions are possible.
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