– P bought a car, and ten days later it broke down…Sued D for breach of an implied warranty of merchantability imposed by the uniform sales act…
– D claimed that warranty been disclaimed as permitted by the act an relied upon a provision contained on the back of the purchase…..Very small writing, and you have to sign the front of it…Only warranty for the defective part, not the injury occurring from.
- This contract is a “take it or leave it” deal.
- No bargaining involved…dealer has no authority to alter the deal as well
- Form is for the “big three” which comprise 86.72% of the whole automobile industry…have the same contract
- A reasonable person would not assent to a contract where if a part was defective they would not recover monies from the warranty
- It is reasonable to believe that the buyer would think that the warranty included 90 days and 4000 miles
- For D, it would be abandoning all sense of justice if the buyer is relinquishing any personal injury claim that may flow from the use of the defective part.
- Draftsmanship is reflective on the skill of the automobile industry to avoid liability for breach of contract on personal injuries from the warranty.
- No arm’s length for either side.
– Trial court ruled in favor of the plaintiffs
– Can this mass produced contract be binding and cohesive? Was there assent? Was there bargaining? Did the P know what he/she was getting into?
– UCC 2-302
– Framework of modern commercial life…Standardized mass contract has appeared…
- Used by large and strong enterprises…and all the same competitors use it.
- Resemble more of “law” than the meeting of the minds.
- Gross inequality of bargaining position is clearly apparent.
- “freedom of contract” to avoid injustices….No competition among the competitors with this form of contract
- Lacking knowledgeable assent from the buyer
- It must be specifically drawn to the buyers/patron’s attention or it is not binding…There must be assent from the buyer.
- Usually public or semi-public in nature for such clauses, generally veers away from private transactions.
- No other means of buying a car due to the dominance in the marketplace.