WHAT IS AN EXPRESS WARRANTY?  

An express warranty is:

·         any description of an automobile, boat or other product;

·         that the automobile, boat or other product meets that description; and

·         which is made part of the basis of a buyer’s and seller or buyer and manufacturer’s bargain; or

·         any sample or model which is made part of the basis of a buyer’s and seller or buyer and manufacturer’s bargain;

·         creates an express warranty that the automobile, boat or other product shall meet the sample or model’s description.

For an express warranty to be created, it is not necessary for the seller to use formal words such as ‘warranty’ or ‘guarantee’ or that the seller have a specific intention to make a warranty.  However, if a seller merely makes a representation about the value of an automobile, boat or other product or a statement claiming to be merely the seller’s opinion or recommendation about an automobile, boat or other product, such representations or statements do not create an express warranty. 

WHAT IS A BREACH OF EXPRESS WARRANTY CLAIM?

A breach of warranty requires an automobile, boat or product buyer or a person with a right to enforce an automobile, boat or product warranty (whether a consumer or business) to prove that:

·         The buyer or other person was entitled to entered into a contract with a seller to purchase an automobile, boat or other product provided with a warranty.

·         The buyer did what the warranty required them to do to do.

·         The party issuing the warranty (usually, either a seller seller or the automobile, boat or product’s manufacturer) did not do what the warranty required them to do, thereby breaching the warranty;  

·         The breach of warranty was material – not something trivial; and

·         The breach of warranty caused the buyer to suffer a loss.

In a breach of an express warranty claim, the buyer claims that an automobile, boat or other product did not meet the seller’s factual claims or promises.  Any factual claims or promises that seller makes to the buyer about an automobile, boat or other product offered for sale and that become part of the basis of the parties’ bargain create an express warranty that an automobile, boat or other product would meet the seller’s factual claims or promises. 

WHAT MUST A BUYER DO BEFORE CLAIMING THAT A BREACH OF EXPRESS WARRANTY OCCURRED?

If an automobile, boat or other product does not meet that express warranty, the buyer must then give the seller notice of that fact within a reasonable time after the buyer discovered or should have discovered that the automobile, boat or other product did not meet the express warranty.  When the buyer should have discovered that the automobile, boat or other product did not meet the seller’s factual claims or promises depends on all the facts and circumstances, including the nature of the defect, the time when the automobile, boat or other product was put in use and whether the nonconformity was discoverable by customary and reasonable inspections.  The buyer’s notice to a seller of a defect is normally sufficient if it informs the seller that the buyer claimed that the automobile, boat or other product was defective.    If the buyer gives the seller this notice in a reasonable time after the buyer discovered or should have discovered the defect, then the seller committed a breach of express warranty and is responsible for paying the damages that the breach of express warranty caused the buyer to suffer.

WHAT IS AN IMPLIED WARRANTY OF MERCHANTABILITY?

Under the implied warranty of merchantability, the automobile, boat or other product must be reasonably fit for the general purpose for which it is manufactured and sold." Merchantability means "that the article sold should be of the general kind described and reasonably fit for the general purpose for which it should have been sold."  For example, a car should be provide safe and reliable transportation on the roadway.  When a manufacturer of a product, such as an automobile manufacturer, puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as an automobile accompanies it into the hands of the ultimate purchaser from the dealer. 

WHAT IS AN IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE?

An implied warranty that an automobile, boat or other product is fit for a particular purpose arises when:

·         parties enter into a contract for the sale of an automobile, boat or other product

·         the seller knows or should know that the buyer requires the automobile, boat or other product for a particular purpose; and

·         the buyer is relying on the seller’s skill or judgment to pick or provide suitable goods,

For an implied warranty of fitness for a particular purpose to exist, the buyer must actually rely on the seller’s skill or judgment rather than the buyer relying on their own skill or judgment in buying the automobile, boat or other product.  To determine this issue, the judge or jury deciding a case considers the following:

·         all the facts and circumstances surrounding the sale - both what was said and what was done by the parties, including, any reference to a particular trade or brand name). 

·         whether under all of the facts and circumstances existing at the time of the sale, the seller new or should have known that the seller required an automobile, boat or other product for a particular purpose and was relying on defendant’s skill, or judgment.  The buyer does not have to specifically state their purpose to the seller; it is enough that the circumstances surrounding the sale gave the seller reason to know of the buyer’s purpose and that the buyer was relying upon the seller’s skill or judgment.

·         whether the automobile, boat or other product was actually fit for that purpose. 

·         whether the buyer gave the seller notice of that fact to defendant within a reasonable time after they discovered or should have discovered that the automobile, boat or other product was unfit for the particular purpose.  When plaintiff should have discovered the defect depends upon all the facts and circumstances, including the nature of the defect, the time when the automobile, boat or other product was put in use and whether the defect was discoverable by customary and reasonable inspections.  The buyer’s notice is sufficient if it informs the seller that the buyer claimed that the automobile, boat or other product was defective. 

WHAT OTHER LAWS PROTECT CONSUMERS WITH AUTOMOBILE, BOAT OR PRODUCT WARRANTIES?

The Magnuson-Moss Federal Warranty-Trade Improvement Act (Warranty Act) authorizes consumers to suit for damages for breach of certain warranties, including express and implied warranties, arising under New Jersey law in connection with the sale by a supplier of a consumer product.   The Warranty Act offers consumers a basis in federal law for recovering damages.  Under the warranty law, a consumer may bring an action against a "supplier, warrantor, or service contractor" on any "written guarantee, implied warranty or service contract."   Thos successful under the Warranty Act may recover their reasonable attorney’s fees and court costs.

CAN I HANDLE A NEW JERSEY WARRANTY LAW DISPUTE BY MYSELF?

Some people can and do successfully handle cases themselves, from filing the first paperwork to the collection of a judgment.  However, many other people also make mistakes that lead to the dismissal of their cases or that result in the entry of a money judgment against them.  The greater the money at stake, the greater the reason to consider using the services of a competent attorney licensed to practice law in New Jersey to handle part or all of the case.  The following are reasons to use an attorney to handle part or all of your case:

·         court fees often change

·         court rules often change

·         court employees cannot give you “free” legal advice and a judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees

·         court forms available on websites may not cover every situation you may face in court

·         each case has its own particular legal issues and therefore, its own challenges

·         it is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the court or being dismissed by the court after filing and before or after trial because of procedural deficiencies  

·         it is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the case. 

·         a court has the power to punish unprepared parties or parties who make mistakes, such as by throwing their case out of court or limiting what they can present at trial. 

·         New Jersey has many published cases, laws, regulations, court rules and rules of evidence that are very tricky and that can be used to prevent you from doing much of what you want to do at trial. 

·         it is very common for courts to refuse to allow a party to use or refer to documents or items at trial that the person themselves never prepared.  Often parties stumble into court with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a judge tell the parties that it is not going to even consider such items or documents. 

·         without the proper preparation, items and documents may never be considered by the court.  Also, if there are any legal issues to be dealt with at trial, you must be prepared to argue them, which may require you to refer to court rules, evidence rules, laws, regulations or published cases. 

·         you cannot show up at court expecting the judge hearing your case to explain court rules, evidence rules, court procedure or the details of the law that applies to your case.  The judge hearing your case is not permitted to give you legal advice.

It is important to remember that even if you have an attorney, you could lose your case.  No attorney can guarantee results in civil disputes.  Hiring an attorney to handle part or all of your case does not guarantee your success.  However, it may provide the assistance you need to win your case, to settle your case or to avoid certain mistakes.

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING NEW JERSEY WARRANTY LAW DISPUTES?

Yes.  Paul DePetris has performed the following tasks:

·         represented consumers, home buyers, home sellers, home repair customers, home repair contractors, home inspectors, real estate brokers, real estate agents, junk yard dealers, automobile purchasers and owners, new and used car dealers, banks and automotive lenders, boat purchasers and owners, watercraft purchasers and owners and marinas in New Jersey Warranty Law disputes.

·         appeared in court in cases involving New Jersey Warranty Law disputes.

·         mediated, arbitrated and tried New Jersey Warranty Law cases.

·         settled New Jersey Warranty Law cases.

·         won court awards in New Jersey Warranty Law cases

·         won judgments in New Jersey Warranty Law cases

Mr. DePetris has appeared before the Superior Court of New Jersey in the following counties:

Mr. DePetris has also appeared in federal courts - the District of New Jersey in Camden, Trenton and Newark and in the Eastern District of Pennsylvania.

Mr. DePetris is also the author of the following publications:  New Jersey Consumer Fraud Act & Forms (New Jersey Law Journal Books, 2007); Learned Professionals, Licensed Semiprofessionals and the Consumer Fraud Act:  The Origins of the Licensed Professionals’ Doctrine (New Jersey Lawyer, Oct. 2008); and Liability For Consumer Fraud In Real Estate Transactions (New Jersey Law Journal, March 18, 2009).   Mr. DePetris also gives seminars on the New Jersey Warranty Law.

WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY CASE FROM BEGINNING TO END?

In many situations, the Law Office of Paul DePetris offers alternatives to handling cases for an hourly fee, such as by offering to prepare the court paperwork for you or helping you handle your claim by yourself.  Such flexible methods may allow you to keep the amount legal fees you spend on your case to a fixed sum, while providing you the help you need to handle your case.  For a no cost phone consultation about what the Firm might be able to do for you, call or write an email to Mr. DePetris at:  609-714-2020 or consumerlaw@newjerseylemon.com.