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Martin Silver is a practicing attorney with offices in Hauppauge, N.Y. He was a flooring installer before and during the time he went to law school and has since represented numerous industry people and companies. To contact him, call 631-435-0700.

10:16:58 AM 
Manufacturers' warranties

Much of the flooring sold today, although usually sold by a retailer to his consumer, comes with various warranties from the manufacturer. These warranties may include the length of wearability, the color fastness of dyes, the ability of the goods to withstand staining, etc. It would appear, at least to the retailer selling the goods, that he should not be responsible to see the manufacturers' warranties are kept. This however, is not always true.

In one recent case, a dealer attempted to make it very clear that the product he was selling was guaranteed only by the manufacturer. In his contract of sale with his customer he expressly disclaimed all warranties, stating he was selling the goods "as is" with only those warranties made by the manufacturer.

As sometimes happens, the consumer soon became very unhappy with the product and complained to the retailer. The retailer reminded his customer about his contract and referred him to the manufacturer. The manufacturer, for whatever reason, refused to replace the goods as demanded. Upon this refusal, and apparent "breach of warranty" the consumer sued both the dealer and the manufacturer.

The manufacturer defended this lawsuit not upon the merits of whether or not the goods in question were in fact defective, but rather upon its contention that it was not contractually bound to this consumer since: (1) it did not sell the goods to the customer, and (2) it had no signed written agreement between itself and the consumer. In legal terminology, it was claiming the buyer was not "in privity of contract" with the manufacturer.

The court that heard this case agreed with the manufacturer and threw out the consumer's case, forcing her to appeal to the Supreme Court. This court found that the manufacturer was in fact responsible to stand behind its warranties but only up to a limited amount of damages. The consumer, who by now only wanted to return the goods and get back all her money- a sum well in excess of what the court said she could get- was not happy.

She attempted to continue her court case against the retailer, to force the retailer to take back the obviously defective goods. The dealer fought this part of the lawsuit with his contract, which showed the consumer had agreed that he, the retailer was simply selling the goods "as is," and the only warranties were those made by the manufacturer. Therefore, he cold not now be held responsible for the claimed defects, and he should definitely not be made to take back the goods- by now almost worthless- and issue a total refund.

Now many of us who have been to court in a lawsuit brought by a consumer have walked away with the feeling the judge had appeared to bend over backwards to help her. This case was no different.

Although the court agreed with the dealer that he himself did not specifically warranty the goods he sold, he did, the judge noted, sell it as being warranted by the manufacturer. This meant that the retailer did in fact warranty that the manufacturer would deliver the product as claimed to be, free of defects, and if any such defects appeared, that the manufacturer would "cure" same, no matter what was required, within a reasonable time.

What the judge was saying was that the retailer, by selling the product with the manufacturer's warranties, was in effect guarantying to his customer the manufacturer would stand behind those warranties. Since the court found the manufacturer did not back up its warranty, it followed that the retailer had breached his own warranty that the manufacturer would be responsible.

Edited by Admin 4/17/2008
10:17:58 AM

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Transmitted: 6/23/2018
11:34:51 AM

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