Business used to be done on the merit of a man’s word, or on a handshake. It’s hard to imagine that kind of trust in today’s culture, where detailed contracts define business relationships. Experienced (and expensive) attorneys negotiate terms to which both parties agree to adhere. Unfortunately, even then, contracts can be broken, or “breached.”
In our earlier blog post on the topic, we discussed what it means to have an enforceable contract, what it means to “breach” that contract, and what the consequences are when a contract is breached by one of the parties. In this post, we’d like to tell you a little bit about four similar types of breach claims.
- Breach of Express Warranty. A sale of goods may include a positive statement of fact or promise by the seller that the goods possess certain characteristics. An affirmation of fact or a promise is called a warranty. A warranty may be made orally or in writing, or it may be implied from the circumstances of the sale. An affirmation of fact or promise made by the seller to the buyer that relates to the goods and upon which the buyer relies in making the decision to buy creates an express warranty that the goods shall conform to the affirmation or promise.
- Breach of Implied Warranty of Merchantability. A sale of goods contains an implied warranty that the goods are merchantable. The implied warranty of merchantability requires that the goods: (1) pass without objection in the trade for goods of the description agreed upon in the contract between the parties; and (2) are fit for the ordinary purposes for which such goods are used.
- Breach of Implied Warranty of Fitness for Particular Purpose. There is an implied warranty that goods shall be fit for the particular purpose for which the goods are required if, at the time of sale, the seller has reason to know the purpose and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods for that purpose.
- Fraud. To recover under this theory, a plaintiff must prove by a preponderance of the evidence that the defendant made a representation as to a present or past material fact to the plaintiff, that the representation was false, that the defendants knew the representation was false, that the defendants intended the plaintiff would rely upon the representation and to act or not act in reliance upon it, that the plaintiff did not know that the representation was false and was justified in relying upon the truth of the representation and the plaintiff acted in reliance upon the representation, and that as a result of the plaintiff’s reliance upon the defendant’s representation, the plaintiff has sustained damage.
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With more than 75 years of combined experience and more than $45 million recovered for our clients, The Lawyers of Brown & Roberto are serious lawyers who know how to win. We represent clients in lawsuits involving breaches of contract and the above related claims. Contact us today to schedule your free consultation. Call (865) 691-2777 or use the convenient response form below.