M Civ JI 25.11 Express Warranty - Definition

An express warranty is a representation or statement, made in writing, orally or by any other means, by a [ manufacturer / seller ], that his or her product has certain characteristics or will meet certain standards.

*(An expression of opinion which cannot reasonably be believed or relied upon is sales talk or trade puffing and is not a representation or statement of an express warranty.)

Note on Use

The description of the warrantor can be adapted to describe him or her accurately under the facts of the case; e.g., “contractor” or “lessor” may be more appropriate than “manufacturer” or “seller.”

*The paragraph in parentheses should be used only when there is a dispute whether a statement is an express warranty or mere sales talk.

Comment

Some Michigan decisions involving express warranties are Bahlman v Hudson Motor Car Co, 290 Mich 683; 288 NW 309 (1939); Curby v Mastenbrook, 288 Mich 676; 286 NW 123 (1939); Dvoracek v Goldstein, 311 Mich 680; 19 NW2d 333 (1945); Worden v Peck, 245 Mich 237; 222 NW 101 (1928); and Hansen v Firestone Tire & Rubber Co, 276 F2d 254 (CA 6, 1960). The Uniform Commercial Code definition of an express warranty is found in MCL 440.2313.

The distinction between an express warranty and trade puffing has not been articulated clearly by Michigan courts. It has been said, however, that statements which are not reasonable to believe are trade puffing and sales talk. Hayes Construction Co v Silverthorn, 343 Mich 421; 72 NW2d 190 (1955). If there is a dispute on this point, the existence of an express warranty normally will be a jury issue. Nevertheless, the Court in some cases may be required to decide that question as a matter of law. See Worth v McConnell, 42 Mich 473; 4 NW 198 (1880); Goodspeed v MacNaughton, Greenawalt & Co, 288 Mich 1; 284 NW 621 (1939).

A question about reliance also may arise in defining an express warranty. Several cases suggest that Michigan follows the traditional rule and requires reliance by the injured party for recovery on an express warranty. See Kepling v Schleuter Manufacturing Co, 378 F2d 5 (CA 6, 1967); Curby v Mastenbrook, 288 Mich 676; 286 NW 123 (1939); May v Otto, 236 Mich 540; 211 NW 64 (1926); Barron v Probert, 230 Mich 313; 202 NW 941 (1925). Although the Uniform Sales Act, in effect at the time of these decisions, has been repealed, not all of these cases fell under that act. The Uniform Commercial Code, MCL 440.2318, indicates that an express warranty extends to any natural person in the family or household or to a guest of the purchaser under certain circumstances. The extent to which reliance is still required in cases under and outside of the Uniform Commercial Code is not known.