realize it or not. The rules that govern warranties for products, such as the
food you serve, have been embodied in the Uniform Commercial Code, some
form of which has been adopted in every state.
A warranty is, in essence, a guarantee that an item will be of a certain quality or
have particular attributes. Giving a warranty involves certain obligations, so you
should be aware of what those obligations are. Any statement of fact or promise
that describes the characteristics of an item will create an express warranty. In
general, you do not need to use the words “warranty” or “guarantee” to create
an express warranty. However, the more explicit your statement, the more likely
it is that you have, perhaps unwittingly, given an express warranty.
ELEMENTS OF AN EXPRESS WARRANTY
In order to determine whether statements are the type that will give rise to an
express warranty—as opposed to mere expressions of opinion, which will not—
the courts have developed a test. If the seller makes a statement to the buyer
relating to goods about which the buyer is uninformed, that statement is prob-
ably an express warranty. On the other hand, if the seller merely expresses a
judgment about something on which each party would be expected to have an
opinion, no express warranty is given.
For example, if a supplier were to state that a ceramic bowl was safe to put in an
oven, this statement would likely be considered an express warranty, since most
restaurant buyers cannot easily determine the characteristics of every type of
pottery, and the seller would know about this bowl in particular. In order to
determine whether a statement will be considered an express warranty, a number
of factors are relevant. A written statement, particularly if it is part of a contract
or bill of sale, is more likely to be considered an express warranty than an
oral statement. How much the seller qualifies the statement is also an indication
of whether an express warranty is created.
Another way an express warranty can be created is by giving a description of the
item that becomes part of the basis of the bargain. For example, the description
does not need to be the sole inducement for a customer to order a particular
dish in order for it to constitute a warranty. If a contract is involved, any statements
must have been part of the contract negotiations, but the precise time a
statement is made is irrelevant. The buyer could already have paid for an item
and the seller could then make a statement that could be considered part of the
basis of the bargain, since, theoretically, the buyer could still decide to return the
goods to the seller and get the money back. This could apply, for example, if
your restaurant is purchasing a new oven. These post-purchase statements must,
however, be made within a reasonable period of time to be considered part of
the bargain, and they probably only apply to dealings in person.
An additional problem presents itself if your restaurant sells canned or prepackaged
signature dishes, whether through a catalog, ads, or in the restaurant.
Catalogs, ads, menus, and your website, and any statements made in them,
could be considered part of the basis of the bargain for those making purchases,
although buyers would probably have to prove that they relied on those statements
in making the decision to purchase.