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Words Have Meaning: You Could Be Creating An Express Warranty


When your business sells a product, you may make a lot of representations about the product. You may talk about how long the product will last, how well it will perform, or tout its qualities and attributes. But what you may not realize is that what you are also doing is creating an express warranty. In other words, all that talk about what your product can do, isn’t just talk. It’s creating a legally binding warranty.

Creating Express Warranties

Florida law says that an express warranty exists anytime a seller makes a representation about a product, and that representation becomes a “basis of the bargain” in the eyes of the buyer. In other words, if part of the other party buying the product is based on the seller’s representations about the product, a warranty is created.

This means that the buyer has to prove reliance—that it actually did take into account the warranties, when entering into the contract or agreement.

You do not have to use the word warranty, guarantee, or any other similar language. And, just your opinion about the product or goods or “complimenting” the product or goods, won’t be enough to create a warranty. This is sometimes called “puffery” such as “this is the greatest pizza cutter you’ll ever use,” or “our furniture is the most durable that you’ll find anywhere.” Puffery does not create an express warranty, and puffery is a common defense to claims for breach of express warranty.

Privity in Express Warranties

There is another requirement to a breach of express warranty claim—privity. This means that the person selling the goods (the party making the warranty) and the party seeking to enforce the warranty, the buyer, must have a direct contractual relationship. There must be no middleman.

So, for example, if BMW offers an express warranty, but the dealership does not, and you buy the car from the dealership, you cannot enforce the express warranty.

This law is somewhat in flux—many courts have ruled that an express warranty can extend from one party to the next, even without privity, and this tends to be the trend in Florida cases.

In fact, express warranty is very closely related to the doctrine of strict products liability cases, where an end use consumer can sue anybody in the line of production—manufacturer, distributor or retailer—for injuries caused by a defective product. No privity is needed in product liability cases.


To protect yourself from breach of express warranty claims, you can include a disclaimer in your purchase contracts or agreements. However there are limitations to the disclaimers that you use. You cannot limit damages for any personal injuries, and any disclaimer has to be clear and conspicuous.

If you are in a lawsuit involving the purchase or sale of a product, or anything related to your business, we can help. Call the West Palm Beach business litigation lawyers at Pike & Lustig today.



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