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#322 Product warranties (Pt. 2)

mp3 #322 Warranties on the Products You Buy Part 2 (mp3 file)



Many retailers offer service contracts to supplement or extend the length of a written warranty if you pay a small yearly or monthly charge. Service contracts are not warranties; they are contracts made with a retailer or a third party such as a service company. The retailer, not the manufacturer, promises to repair and service the product. Routine maintenance, usually excluded from written warranties, is often required by service contracts.

For example, when your washer's written warranty is about to come to an end, the seller may ask if you would like to purchase a service contract. Or you may be invited to purchase a service contract. For a basic yearly or monthly charge, you can have a serviceperson repair any problem with your washer.

Essentially, your periodic payments average out to the approximate average repair cost for all purchasers of the product. The cost varies, depending on the type of appliance the contract covers, and the scope of the service promised. The law requires that the terms of service contracts be spelled out in plain language.

With a new product you usually get a written warranty as well as the implied warranties. So, compare the warranties and service contract carefully to see how much the service contract really adds.

There are two basic warranties: express and implied. Express warranties are usually written, consisting of the statements made by the manufacturer or seller. Implied warranties are created by law and depend less on what the manufacturer or seller has said.

Advertisements, sales brochures, descriptive labels, instruction manuals, and either oral or written statements and promises accompanying the sale will often create express warranties enforceable against the party who has made them.

To be enforceable as an express warranty, a statement about a product must relate to the particular sale. While some manufacturers and sellers will argue that no express warranties were made except those that appear in the written warranty, courts usually will reject such arguments if persuasively contradicted.

California law supplies a special unwritten warranty, called the "implied warranty of merchantability" or "implied warranty of fitness," in almost every sale in which a written warranty is given, and most other sales too. The implied warranty of fitness is basically an implied-by-law promise by the manufacturer and retail seller, that the product is fit for its ordinary purposes.

The written warranty may only cover certain parts of the product and certain kinds of defects, and its protections may be limited to certain periods of time. The implied warranty, however, applies to the whole product and to all material defects for a reasonable duration. In sales where the written warranty offers you only limited assurance, the implied warranty often will fill a needed gap and give you an assurance that the product as a whole will be fit for its intended purpose. Sometimes, the California Commercial Code's implied warranty will provide a remedy where your written warranty has expired.

 

Under the California Song Beverly Act, virtually all new products that are sold at retail have an implied warranty of fitness. This means that both the manufacturer and the retail seller must furnish a product that is fit for its ordinary purpose. In other words, a toaster must be able to toast bread, and a clothes dryer must be able to dry clothes.

If a product is installed or repaired by a company in the business of repairing, installing or servicing that product, the company must service the product to the best of its ability. This obligation is much like the implied warranty and is present in every transaction. It does not depend on what the written contract, if there is one, says.

An implied warranty of quality and fitness is also present in the sale of all new homes and home improvements. Hence, all new products, new construction, improvements, installation, servicing and repairs must satisfy certain basic minimum legal standards of quality or fitness.

The duration of the implied warranty depends on the kind of product and the circumstance of the sale. When the product is accompanied by a written warranty, the implied warranty's duration is the same as the written warranty's duration, but generally not less than 60 days nor more than one year. If there is no written warranty, the implied warranty lasts a year. During the period while a product, sold for $50 or more, is being repaired, the duration of the implied warranty is extended.

If a defect was present at the time of sale but is not discovered until much later, a Commercial Code implied warranty of fitness may be present, but it may be necessary to consult a lawyer to enforce it.

The implied warranty of quality and fitness does not apply to food, personal care or cleaning products. If, however, the product or its instructions for use are defective and personal injuries have resulted, some other law may provide a remedy. In that event, an attorney should be consulted.

The implied warranty of fitness also does not apply to the sale of wearing apparel including under and outer garments, shoes and accessories made of woven material, yarn, fiber, leather or similar fabrics.

If, however, the clothing is accompanied by a written warranty, and clothing that does not conform with the written warranty can be returned to the manufacturer (or the retailer if the warranty so states) within the time specified on the warranty (usually 30 days).

While the implied warranties are created by law, the duties arising from a manufacturer's written warranty are those which the manufacturers itself has agreed to assume. You usually will find the manufacturer's ready, willing and able to honor the duties spelled out in their written warranties. Since California law states that warrantors must establish facilities and procedures to carry out their written warranties, you should always first attempt to follow the steps outlined in the warranty. If the written warranty does not provide adequate protection or is deceptive, or if the warrantor or its representative fails to carry out its provisions, you can then look to an implied warranty for help, but in those instances you may need to go to court (E.G., small claims court) to enforce your rights.

A product that is perfectly merchantable may not meet your particular needs. For instance, a camper shell that is suitable for most trucks may not fit the elongated bed on your truck. If, in making the purchase, you sought and received help in determining what product would meet your particular needs, you may have rights against the seller (or other party on whose skill and judgment you relied rather than your own) if the product is not suitable. In those instances, you have another unwritten warranty called the "implied warranty of fitness for a particular purpose".

If the product does not measure up to the warranty of fitness, or is not as represented in the advertising, literature or warranty, the California Commercial Code states that you can reject and return the product if you act immediately upon delivery and before acceptance. If you have accepted the product, you can still cancel your acceptance of it and return it if you act promptly, and if the defect substantially impairs its value to you.

At some point - the earlier the better - you must decide which of the two basic remedies to pursue: either keep the product and seek money for any losses or damages; or cancel the sale, return the product and seek your money back. In either case, you must notify the party (or parties) of your claim.

If the defect is minor, or you have a special reason to keep the defective product (e.g., a used motor vehicle on which you have performed personal labor that is not reflected in its value), you can keep it and make a claim for money damages. You may recover money for the losses resulting from the seller's failure to perform its legal duties, as determined in any reasonable manner. If the warrantor does not voluntarily honor your claim, you have the right to sue in small claims court.

Before cancelling a sale, you must give the seller or manufacturer an opportunity to "cure" the product's defective performance by making necessary adjustments within a reasonable time period.

You can return a defective product only if the defect was unknown when you accepted the product, or, if known, the product was accepted because of the seller's assurances that the defect would be corrected. Any return must occur within a reasonable length of time after you discover the defect, or after a reasonable buyer "should have" discovered the defect.

If you return a defective product, you must inform the seller, preferably in writing, of the reasons why you are returning it. A copy of your letter should also be sent to the manufacturer (if the product was purchased new), as well as the bank of finance company that financed the purchase.

If the return was legally proper, you have a right to recover the down payment and any installments you have paid, plus, in some cases, money for any incidental damages resulting from the seller's failure to honor its obligations. The cost of any necessary towing or repairs, as well as the cost of financing, may be recoverable.

If the seller has gone out of business or refuses to honor your rights, you may be able to assert such claims against the financing agency. Read your credit contract to determine if you have that right.

If you accept a defective product and do not have a legal right to return it (for example, because of a delay), you may still assert your other remedies. For instance, you may keep the product and assert a claim for your losses in court. You will have to show that the warranty exists, that the product was defective, and that the defect caused the losses you are claiming.

A buyer of a defective product can use any of the laws mentioned above to go to court to recover a judgment for either money damages, or other relief, such as cancellation, because of the warrantor's failure to honor its warranty, service contract or implied warranty.

A violation of the law, (e.g., failure to make a plain and understandable statement of your rights and duties), also will give you a right to recover any losses that result from the violation.

Modification Of Legal Remedies

Most warrantors will attempt to limit your remedies to "repair or replacement" only. In many instances, including Full Warranties, this limitation basically is legal (except for personal injury damages). At the same time, there are several restrictions on the warrantor's power to limit your legal remedies. For instance, the remedy the warrantor offers in its written warranty may not provide a workable remedy for you. In such circumstances, you may have the full range of remedies; including the right to return the product and receive back what you have paid, and/or claim damages for all of the losses you have suffered because of the defect.

The preceding information was taken from publications of the California Department of Consumer Affairs. Information about warranties and other consumer information can by found on their webpage at www.dca.ca.gov.

 

 

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