Defective – Unsafe Marine Product Breach of Express Warranty
A breach of warranty claim examines the obligation pursuant to a sales contract. Having graduated as a marine engineer from a merchant marine academy, acquired three U.S. Coast Guard engineer licenses and previously represented yacht/boat manufacturers and repair facilities for 19 years, board certified maritime attorney Keith Brais with the law firm of Brais Brais & Rusak is in a unique position to assist in breach of express warranty claims involving defective or unsafe marine products. The lawyers at the law firm of Brais Brais & Rusak with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas are here to help.
To pursue a breach of express warranty claim proof of negligence is not required. The eligible plaintiff is the buyer pursuant to an expressed or implied contract. Third parties who are deemed beneficiaries of a buyer’s contract can also be an eligible plaintiff. Beneficiaries can include the buyer’s family, household members, guests, employees, servants, and agents when it is reasonable to expect those persons to use, consume, or be affected by the product.
Breach of warranty is now governed by the Florida Uniform Commercial Code, which both addresses breach of expressed and implied warranty, the latter being divided into merchantability and fitness for a particular purpose claims.
A breach of express warranty exists if a seller makes an affirmation of fact or a promise relating to the goods or provides a description or sample of the goods. The affirmation, promise, description, or sample must be part of the basis of the bargain between the parties. Words like “warranty” or “guarantee” is not required, nor is a specific intention to warrant the goods. From a practical standpoint, an express warranty exists when the seller informs the buyer of facts previously unknown to the buyer but subsequently relied upon by the buyer as part of the basis of the bargain.
- Disclaimer of Express Warranties;
- Seller’s opinion or recommendation (“Puffing”)
- Buyer’s Non Reliance;
Under Federal law, a person making a written warranty is liable for the consumer’s attorney fees in any lawsuit whereby the consumer proves that express warranty was breach. Further, under Florida law, a manufacturer and/or seller is liable for the repair or replacement of the warranted item as well as any damage arising from the failure of that item.
Negligence and strict liability are remedies that provide only tort damages, i.e., losses that are the result of the wrongdoer’s negligence or the defective part, respectively. These damages include: personal injury, wrongful death, diminished value of property, cost of repair or restoration, value of fixtures, personal property and loss of use in certain circumstances. Damages to the defective or dangerous product itself must be recovered under a breach of contract theory, the reasoning being that contracts provide for only “the benefit of the bargain”, i.e., the cost of the product or part itself. Put differently, a contract based claim only allows for the recovery of the 89 dollar part and not the 1.2 million dollar yacht into which the part was installed. This prohibition against the recovery of tort damages is generally known as the “economic loss rule.” Breach of warranty mixes the theories and allows for the recovery of both contract and tort damages depending upon the circumstances. If the breach of the sales contract causes physical harm or damage to property other than the product itself, tort damages are available. If the breach of warranty results in damage to the product itself, contract damages are available.
The attorneys at the law firm of Brais Brais & Rusak have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 1-800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.
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