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A warranty is defined as an assurance declared by the seller of property or goods to the buyer that the goods or the property being delivered to him/her will be as promised. It acts as a guarantee to the buyer that the products are reliable and are also free from any known defects. Furthermore it gives an assurance to the buyer that the seller will, with no payment, repair or replace defects parts within a particular time limit and under specified conditions. A warranty gives an assurance that the product meets the required specifications needed by the buyer. When one purchases a product, an individual in the chain of distribution of the product legally warrants that the given product is reasonably safe (Miller & Jentz 2007).
On the other hand, product liability is defined as the responsibility for a defective product in the manufacturing chain. Manufacturing chain constitutes of manufacturer’s components, assemblers of the components, the wholesaler, retailer and the distributor of the defective product. In the field of law, product liability deals with the liability of the manufacturer of the products, retailer or wholesaler of a given product for injuries arising from hazardous and malfunctioning products. However, not all products need to be tangible to be defective. Other products can be intangible, for instance, naturals, pets, gas, real estate and writings such as instructions, graphs, charts, drugs, food, appliances, automobiles and commercial jets. Defects in a product can be found in its design, manufacturing or marketing. A particular product can be termed as unreasonably dangerous due to intrinsic design flaw before the manufacturing stage. Product liability is assessed as a result of a difficulty in the manufacturing process that varied from the design. Additionally, in the marketing stage, the product may be liable in regard to improper or insufficient warnings or instructions enclosed.
Defective products lead to millions of injuries and thousands of deaths of individuals each year. Individuals in the society may be injured by something harmless which is used daily, for instance, hand tool. In the above mentioned circumstances, the law of product liability gives the consumers of the product capability to sue for and recover damages (Baldwin Hare & McGovern, 1998) Manufacturers, distributors and vendors are held responsible for the injuries resulting from accidents caused by defective products. The sellers of the product do not have to prove any negligence; it is worthy that the product was defective. However, if the consumers of the product use the product in a way that was not intended by the manufacturer, he/she cannot sue. For instance, if an individual attempts to tow a 6,000 pound boat using car that is specifically designed and marked as having the capacity to tow only 12,000 pounds, when a wheel falls off as a result of the excess weight and the person is injured, that is improper use of the car and one cannot sue. On the other hand, if an individual is driving a car and the wheel falls off because the axle holding the wheel had a crack in it from the designing process, and if the person in injured, he or she can sue the manufacturer under the warranty and product liability type of action.
According to the law of privity, the injured individual has the right to sue the negligent person only if he or she was a party to the engagement with the injured person. The history of the law of warranties and product liability is a history of the attrition of the above mentioned doctrine. A negligent manufacturer who sells a product to the plaintiff via the retailer is effectively shielded from the liability. The doctrine of privity took over the nineteenth-century law. However, some courts came up with exceptions to avoid contradicting an injured plaintiff remedy. After a short period of time, the privity of contract was not necessary where the seller fraudulently cover up the defects. Notably, lack of privity is not a defense if it is predictable that the product, if negligently manufactured, is probably to result to injury to a group of persons that includes the plaintiff. In the early twentieth century, warranties were considered to be an integral part of the sales contract and therefore, some privity limitations were imposed (Emerson, 2009). Exception to the privity rule was made to products that were made for human consumption such as food, beverages and drugs. In the 1930s, the privity requirements were abandoned in the express warranties. However, in implied warranties, the exception to the privity rule did not go beyond food, drinks and other similar products. Finally, in 1963, strict tort liability for defective products was adopted by various jurisdictions across the world.
There are various theories applied by an injured party to bring an action on warranty and product liability law. These theories include negligence, breach of implied and express warranties, strict liability and misrepresentation. The above mentioned theories overlap to a great extent and are the outcome of historic evolution of the law. Firstly, under negligence theory, the plaintiff is required to prove negligence. Negligence is clearly defined as the lack of, or failure to exercise, better or ordinary care. This means that a person who had a legal duty to accomplish omitted to do it or did something else that should not have been done. A manufacturer is held responsible for negligence if he or she exercises no reasonable care in the production, design, or assembly of the product that cause mischief. For instance, a manufacturing company is found negligent if it authorizes improper procedures and policies and unsafe product is made thereof. In the chain of distribution, various individuals carry out various responsibilities, and they have a task to lookout against negligence and supply a proper and safe product. The manufacturer should take careful considerations so as not to produce a defective product, the company ought to detect any obvious defect and the seller should take care in delivering products for sale. The above mentioned individuals owe a duty of care to a person who is likely to be injured after consuming the defective product. Furthermore, the duty to practice care is applied in all the stages of production and delivery to respective consumers (Gerald & Hill 2005).
In order to make the product effective and safe for consumption by the users, it must be designed in a way that is safe for its purposeful use. The management of the company should ensure that the product is inspected and tested at varying stages, accumulated carefully and produced from the proper materials. In addition, the product’s container should be available, adequate and the proper warnings and instructions should be communicated to the users of the product. The manufacturer advises the seller of the product not to misrepresent the safety and the character of the product and should reveal all the products defects.
Secondly, a plaintiff can proceed under a warranty theory. Warranties are kinds of express or implied representations of fact that the law will put into effect against the person who has issued the warrant. In product liability law, there are three types of warranties namely, express warranty, implied warranty for fitness for a specific use and implied warranty of merchantability. These warranties are contained in the Uniform Commercial Code (UCC). Express warranty is created in three broad ways: affirmation of fact made by the seller of the products to the buyer linked to the goods; by method of description of the goods and through a model, all this constitutes the bargaining basis. Words spoken during sales contract negotiations, a model, purchase of similar product earlier or tags fixed to the product are forms of express warranty. When a salesperson declares that the product is guaranteed free from defects within a period of one year from the date of purchase, an express warranty is formed.
Implied warranties are formed and imposed by the law, and they relate to the transfer of title to goods. They do not apply where the title of the product is expressly and limited by the contract. However, in cases of damages for personal injuries, the UCC states that the contractual limitations cannot be effected. In the implied warranty of merchantability, the product and its package must meet the minimum standards of quality and reasonable safety. The product being supplied must be fit for the normal purposes for which goods are sold. The implied warranty of fitness for a particular purpose has the same requirements as in cases where the seller knows the reasons for which particular types of goods are required, and the buyer’s reliability on the goods. The seller thereafter warrants that the goods are fit for that particular purpose. Once a seller recommends the use of a good, he/she makes an implied warranty (Jennings, 2005). In case the good does not meet the required purpose, the buyer can file a suit. Breach of one of the aforementioned warranties, contains aspects of tort and contract law.
The plaintiff is required to be in ‘’privity’’ of contract with the defendant. A contractual relationship has to be maintained between the injured party and the defendant ought to be sued. When a buyer is purchasing some product, the seller declares that he/she will accomplish the terms of a promise, claim, or representation pertaining the quality and type of the product. In pursuit to the privity limitation, various contract-related defenses have hindered the usefulness of the remedies. These defenses include the requirement that the seller get prompt notice of the breach as a form to his or her liability, the necessity that the buyer has depended upon the warranty, and the capability of the vendor to renounce the implied warranties. The contract-related defenses are applied appropriately in cases where product’s defect results to an economic loss. Thirdly, the rule of strict liability is used where the product liability suits makes the vendor accountable for all defective items that threatens the individual safety of the consumer or his/her property . Despite the fact that the seller exercised care in handling the products, he/she is responsible for the defects if the buyer purchased the product from somewhere else and had no direct link with the vendor.
Under strict liability theory, a plaintiff is not supposed to prove either negligence with the manufacturer of the products. Some individuals argue that there is little difference between proving that a product was unreasonably harmful for its purposeful use and proving that a manufacturer was negligent for releasing into the stream of business a product that was unreasonably harmful for its intended use. Other individuals argue that in cases where the state of modern technology was such that the harm was not recognized by the manufacturer at the time of sale, the ability to progress without expressing negligence is vital in helping a jury to arrive at a verdict. Strict liability involves sharing the task of the manufacturer to all persons who might be injured by the product without fault. Injured persons with no direct link to the product can sue for all damages caused by the product. However, the injured person must prove that the item was defective and the defect caused the product to be unreasonably hazardous. In strict liability, the seller must be engaged in the transaction and the product is expected to reach the consumer without any substantial alteration. Finally, misrepresentation is mostly applicable in the sales promotion and advertising of a product in the market (Adamson, 2006). Misrepresentation is defined as the process of issuing the buyers with false security information about the safety of the product by driving attention away from the hazards it espouses. However, the plaintiff must prove that he/she relied upon the representations that were made on the product. Regardless of the theory of liability, the plaintiff should prove that the injury was as a result of product’s defect when it left the hands of the defendant.
Defects and defectives are the commonly used terms in warranties and product liability. Under the law, any product which is unreasonably dangerous for its intended purpose is said to be defective. For example, gasoline is a dangerous product; however, its utility outweighs the dangers in it. Therefore, the law does not consider gasoline as a defective product since its utility outweighs its danger. The adequacy of warnings give by the manufacturer concerning the product determines whether a product is defective or not. Insufficient warnings indicate negligence on the part of the manufacturer, as this increases the dangers posed by the product. There are two types of defects, namely manufacturing defects and design defects. A manufacturing defect arises as a result of the finished product’s non-conformance to the manufacturers standards. Causes of manufacturing defects include malfunctioning during the machining process and use of unacceptable materials. On the other hand, design defects happen when the products are manufactured as the manufacturer needed, but the product is unreasonably harmful for its intended use. For instance, an automobile that cannot bear up with crush injuries during road accidents are considered to have design defects. If a defendant is accountable for the final cause or the immediate cause of the injury, he or she is liable for it.
If the manufacturer cannot make the products as safe as possible, he/she has the duty to warn users and buyers of the harms that exist. When the plaintiff is disappointed because of unreasonable hopes for a specific product, there is no liability which is extended to the manufacturer. Although a defect may not be inherent in the product, the consumer ought to know that care is required. When a consumer misuses a product he or she cannot recover if any injury arises. For instance, a person who ignores a printed warning that nail polish remover is only for external use cannot blame the manufacturer for imperfect product if he or she ingests it. In the above mentioned case, the consumer is said to have assumed the risk and he/she is completely disqualified from recovery if he or she continually uses the defective product. Despite the fact that manufacturers and sellers ought to take precautions and give warnings and instructions, the public can obtain products that cause unavoidable dangers. Under such circumstances, the seller is not held liable for supplying the public with a product that is needed in spite of the potential risks (Miller & Jentz, 2007). Prescription drugs best describes this principle since they have the potential to cause harm when they are unreasonably used. Manufacturer’s duty to bring awareness among the public of unavoidable dangers is faced with certain obstacles if particular individuals suffer allergic reactions.
Warranties and product liability are accompanied by some limitations. For instance, in warranties, the sellers may try to hinder their liability for breach of warranty. Additionally, the sellers may be accused if the limiting factors cause a warranty to fail on its required purpose. When an individual is recovering damages, the product liability suit may be based on the breach of warranty, tort of fraud, negligence or strict liability. Without regarding the aforementioned basis, a consumer still faces difficulties when recovering damages. For instance, an individual who is injured by a defective product may find that the warranty has expired or it does not exist. A defrauded person can also find it hard to prove seller’s misbehavior. Liability can also be limited if the injured individual is found guilty of misconduct that causes the injury. There are various laws that limit seller’s liability in strict liability. For instance, it is difficult to protect a manufacturer if his/her products meet the safety standards of the government. When the manufacturer is available, it becomes a challenge to protect subsequent sellers from a suit (Emerson, 2009).
In warranty and product liability cases, it is important that measures be considered to preserve evidence and document the chain of custody of the given product. This evidence enhances the critical evaluation of the products and the injuries. Manufacturers or producers that communicate misleading information in labels or advertising are liable for the resulting injuries among the consumers. Currently, tort law gives a remedy for injuries caused by defective products and unreasonably dangerously products. In order for one to ensure that his or her case is properly investigated by appropriate experts, one should consult the experienced product liability litigator. Warranties and product liability have been expanded to protect the injured plaintiff and help them to recover fully. One of the key elements in warranties and product liability law is that an individual need not to prove any negligence since it is presumed. This expansion is mostly effective in the areas of privity of contract and damages (Jennings, 2005). In conclusion, it is the duty of manufacturers, distributors and sellers to supply products to the public free of defects which hurt consumers.
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