questionnaire
Section 3. – Warranties and Conditions
Art. 1545. Where the obligation of either party to a contract of sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the nonperformance of the condition as a breach of warranty.
Where the ownership in the thing has not passed, the buyer may treat the fulfillment by the seller of his obligation to deliver the same as described and as warranted expressly or by implication in the contract of sale as a condition of the obligation of the buyer to perform his promise to accept and pay for the thing. COMMENT:
Presence of Conditions and Warranties (a) Conditions may be waived. (b) Conditions may be considered as warranties.
Art. 1546. Any affirmation of fact or any promise by the seller relating to the thing is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the same, and if the buyer purchase the thing relying thereon. No affirmation of the value of the thing, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty, unless the seller made such affirmation or statement as an expert and it was relied upon by the buyer.
COMMENT.
(1) When is There a Warranty?
A good test:
(a) If buyer is ignorant, there is a warranty.
(b) If the buyer is expected to have an opinion AND the seller has no special opinion, there is no warranty. (Spencer Heater Co. v. Abbot, 91 N.J.L-594, 104 Atl. 91). (2) Effect of Dealer’s Talk
Dealer’s talk like “excellent,” cannot be considered as an express warranty. A little exaggeration is apparently al- lowed by the law as a concession to human nature. This is in accordance with the civil law maxim “simplex commendatio non-obligat” or the principle
Art. 1545. Where the obligation of either party to a contract of sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the nonperformance of the condition as a breach of warranty.
Where the ownership in the thing has not passed, the buyer may treat the fulfillment by the seller of his obligation to deliver the same as described and as warranted expressly or by implication in the contract of sale as a condition of the obligation of the buyer to perform his promise to accept and pay for the thing. COMMENT:
Presence of Conditions and Warranties (a) Conditions may be waived. (b) Conditions may be considered as warranties.
Art. 1546. Any affirmation of fact or any promise by the seller relating to the thing is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the same, and if the buyer purchase the thing relying thereon. No affirmation of the value of the thing, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty, unless the seller made such affirmation or statement as an expert and it was relied upon by the buyer.
COMMENT.
(1) When is There a Warranty?
A good test:
(a) If buyer is ignorant, there is a warranty.
(b) If the buyer is expected to have an opinion AND the seller has no special opinion, there is no warranty. (Spencer Heater Co. v. Abbot, 91 N.J.L-594, 104 Atl. 91). (2) Effect of Dealer’s Talk
Dealer’s talk like “excellent,” cannot be considered as an express warranty. A little exaggeration is apparently al- lowed by the law as a concession to human nature. This is in accordance with the civil law maxim “simplex commendatio non-obligat” or the principle