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Breach: 10. Breach of Implied Warranty of Fitness for a Particular Purpose

1 Elements and Case Citations

1. The purchaser at the time of contracting intends to use the goods for a particular purpose;
2. The seller at the time of contracting has reason to know of this particular purpose;
3. The buyer relies on the seller’s skill or judgment to select or furnish goods suitable for The particular purpose;  and
4. The seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment.

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 an implied warranty that the goods shall be fit for such purpose.

Cal. Com. Code § 2315.

See Cal. Civ. Code §§ 1790, et seq., California’s Song-Beverly Consumer Warranty Act..


California Supreme Court:  Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 692-93 (1954).

California 1st Dist.:  Holmes Packaging Mach. Corp. v. Bingham, 252 Cal.App.2d 862, 873 (1967).

California 2d Dist.: Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986); Keith v. Buchanan, 173 Cal.App.3d 13, 25 (1985).

California 3d Dist.:Brittalia Ventures v. Stuke Nursery Co., Inc., 153 Cal. App. 4th 17, 24 (2007).

California 4th Dist.: Cardinal Health 301, Inc. v. Tyco Elecs. Corp., 169 Cal. App. 4th 116, 138 (2008).

California 5th Dist.:  Mills v. Forestex Co., 108 Cal. App. 4th 625, 635 n.4 (2003).

California 6th Dist.:  None.


Ninth Circuit Court of Appeal:  In re Mesa Business Equipment, Inc., No. No. 89-55825, 1991 U.S. App. LEXIS 8625, at *6 (9th Cir. Apr. 30, 1991).

Central District: Viggiano v. Hansen Natural Corp., No. CV 12-10747 MMM (JCGx), 2013 U.S. Dist. LEXIS 70003, at *49 (C.D. Cal. May 13, 2013).

Eastern District:  Nucal Foods v. Quality Egg LLC, 918 F. Supp. 2d 1037, 1043 (E.D. Cal. 2013).

Northern District:Frisby-Cadillo v. Mylan, Inc., No. C 09-05816 SI, 2010 U.S. Dist. LEXIS 43868, at *9-10 (N.D. Cal. May 5, 2010).

Southern District:  Electra Cruises, Inc. v. Camping World RV Sales, No. 11CV1798 AJB (DHB), 2013 U.S. Dist. LEXIS 153706, at *12 (S.D. Cal. Oct. 25, 2013).

2 Defenses to Claim for Breach of Implied Warranty of Fitness for a Particular Purpose

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter __ for all defenses.

(2) Statute of Limitations: Cal. Com. Code § 2725(2) (four years).

(3) The Song-Beverly Act provides with regard to consumer goods:

The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.

Cal. Civ. Code § 1791.1.

(4) Lack of Notice: The purchaser failed to notify the seller of the breach after he or she should have discovered the breach. See Cal. Com. Code § 2607(3)(a).

(5) Lack of Reliance: “The reliance elements are important to the consideration of whether an implied warranty of fitness for a particular purpose exists. . . . The major question in determining the existence of an implied warranty of fitness for a particular purpose is the reliance by the buyer upon the skill and judgment of the seller to select an article suitable for his needs.” Keith v. Buchanan, 173 Cal.App.3d 13, 25 (1985).

(6) Primary Purpose is Service, Not Goods: “[W]here the primary objective of a transaction is to obtain services, the doctrines of implied warranty and strict liability do not apply.” Allied Properties v. John A. Blume & Associates, 25 Cal. App. 3d 848, 855 (1972).

(7) Vertical Privity Required: “Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranties of fitness and merchantability.” U.S. Roofing, Inc. v. Credit Alliance Corp., 228 Cal. App. 3d 1431, 1441 (1991). However, “there are exceptions to this rule, such as one for members of the purchaser's family” (Hauter v. Zogarts, 14 Cal.3d 104, 115, fn. 8 (1975)), or for employees. Peterson v. Lamb Rubber Co., 54 Cal.2d 339 (1960).

(8) Knowledge of Non-Conformity: “Acceptance of goods by the buyer precludes rejection of the goods accepted and, if made with knowledge of a nonconformity, cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured.” Cal. Com. Code § 2607(2).

(9) “No implied warranty of merchantability and, where applicable, no implied warranty of fitness shall be waived, except in the case of a sale of consumer goods on an ‘as is’ or ‘with all faults’ basis where the provisions of this chapter affecting ‘as is or ‘with all faults’ sales are strictly complied with..” Cal. Civ. Code § 1792.3; see Cal. Civ. Code § 1792.4 (“Disclaimer of Implied Warranty”), § 1792.5 (“‘As Is’ Sales”), and Cal. Com. Code § 2316(3)(a) (“all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty”).

(10) The warranty was expressly excluded by the seller. See Cal. Civ. Code § 2316(2) (exclusions must be in writing and “conspicuous”).

(11) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him. See Cal. Com. Code § 2316(3)(b).

(12) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. See Cal. Com. Code § 2316(3)(c).