M Civ JI 140.45 Contract Action - UCC: Implied Warranty of Merchantability - Burden of Proof

The buyer has the burden of proving:

(a) that at the time of [ tender of delivery / delivery ], the goods were not merchantable, and

(b) that the buyer notified the seller that the goods were not merchantable within a reasonable time after [ he / she / it ] discovered or should have discovered it, and

(c) that as a result of the nonmerchantability, the buyer sustained damages.

Goods can be not merchantable at the time of [ tender of delivery / delivery ] even though the defect does not manifest itself until later. It is for you to determine whether the goods were merchantable at the time of [ tender of delivery / delivery ].

*(The seller has the burden of proving that the implied warranty of merchantability was changed or eliminated.)

Your verdict will be for the buyer if the buyer has proved all of those elements.

Your verdict will be for the seller if the buyer has failed to prove any one of those elements *(or if you find that the implied warranty of merchantability was changed or eliminated).

Note on Use

*The sentence and phrases in parentheses should not be read to the jury if change or elimination of the implied warranty of merchantability is not an issue in the case.

Comment

MCL 440.2314.

On the requirement of notice, see MCL 440.2607(3). See also Eaton Corp v Magnavox Co, 581 F Supp 1514, 1534 (ED Mich, 1984).

A buyer is limited to a UCC cause of action and has no action for negligence or products liability if the buyer seeks recovery for economic loss caused by a defective product purchased for commercial purposes. Neibarger v Universal Cooperatives, Inc, 439 Mich 512; 486 NW2d 612 (1992); McGhee v General Motors Corp, 98 Mich App 495; 296 NW2d 286 (1980).

History

M Civ JI 140.45 was added January 1987. Amended January 2020.