400.2-314. Implied warranty--merchantability--usage of trade.
Implied warranty--merchantability--usage of trade.
400.2-314. (1) Unless excluded or modified (section400.2-316), a warranty that the goods shall be merchantable isimplied in a contract for their sale if the seller is a merchantwith respect to goods of that kind. Under this section theserving for value of food or drink to be consumed either on thepremises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contractdescription; and
(b) in the case of fungible goods, are of fair averagequality within the description; and
(c) are fit for the ordinary purposes for which such goodsare used; and
(d) run, within the variations permitted by the agreement,of even kind, quality and quantity within each unit and among allunits involved; and
(e) are adequately contained, packaged, and labeled as theagreement may require; and
(f) conform to the promises or affirmations of fact made onthe container or label if any.
(3) Unless excluded or modified (section 400.2-316) otherimplied warranties may arise from course of dealing or usage oftrade.
(L. 1963 p. 503 § 2-314)(1979) Sale of used or second-hand goods is covered by provisions of the Uniform Commercial Code and an implied warranty of merchantability may arise. Worthey, et al. v. Specialty Foam Products, Inc. (A.), 591 S.W.2d 145.
(1981) Manufacturer may not disclaim implied warranty of merchantability to an ultimate consumer by merely including a disclaimer in a contract with a middleman or buyer who holds for resale only. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.
(1981) Recovery for economic loss resulting from manufacture and sale of unmerchantable product is limited to damages proximately caused by defective product, and buyer has obligation to mitigate damages. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.
(1981) Subcontractor was entitled to recover from manufacturer for economic loss allegedly resulting from manufacture and sale of alleged unmerchantable product. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.
(1981) Implied warranties extend to remote purchasers. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.