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Kelleher v. Lumber12/15/2005
H. 431, 434 (2003). We uphold a trial court's ruling on a motion for directed verdict "when the record supports the conclusion that the trial court did not commit an unsustainable exercise of discretion." Id.
RSA 382-A:2-313 provides, in pertinent part:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
RSA 382-A:2-313(1) (1994). To create an express warranty, the seller is not required to use formal words, such as "warranty" or "guarantee" or have the specific intention to create a warranty. RSA 382-A:2-313(2). Further, an affirmation of the value of the goods or a statement of the seller's opinion or commendation of the goods does not create a warranty. Id. Therefore, to create an express warranty, the promise or affirmation of fact must both relate to the goods and become part of the basis of the contractual bargain. Fassi v. Auto Wholesalers of Hooksett, 145 N.H. 404, 406 (2000).
We first consider whether the representations in the defendant's catalog constitute an affirmation of fact relating to the windows, or whether they describe a particular feature of the windows as part of an educational brochure. The representations assert that the windows were deep treated to permanently protect against rot and decay, which we find constitutes an affirmation of fact related to the windows. When considered in combination with the additional detailed description of the exact process and solution used to treat the wood, the representations are more than a mere opinion or commendation of the goods. Accordingly, the language of the catalog warranty satisfies the first prong of the test to determine if it is an express warranty for the purposes of this claim.
We next consider whether this affirmation of fact was part of the basis of the bargain. That an affirmation is contained in a brochure, catalogue, or advertisement does not preclude a finding that it is a warranty provided it formed part of the basis of the bargain. Interco Inc. v. Randustrial Corp., 533 S.W.2d 257, 262 (Mo. Ct. App. 1976). However, what constitutes "part of the basis of the bargain" is difficult to define. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 171 F.3d 818, 825 (3d Cir. 1999). "Ordinarily a guarantee or promise in an advertisement or other description of the goods becomes part of the basis of the bargain if it would naturally induce the purchase of the product and no particular reliance by the buyer on such statement needs to be shown." Cipollone v. Liggett Group, Inc., 893 F.2d 541, 563 (3d Cir. 1990). Authorities are divided as to whether a buyer's reliance upon the affirmation is a necessary element of proving that the affirmation was part of the basis of the bargain under section 2-313 of the UCC as codified in RSA 382-A:2-313. Id. at 564; see 2 L. Frumer & M. Friedman, Products Liability ยง 9.02(2), at 9-27 (2000) (recognizing the official comments to the UCC provide little guidance to the relationship between the basis of the bargain and reliance). This is a matter of first impression for this court.
Section 2-313 does not define "part of the basis of the bargain." The UCC is an adaptation of section 12 of the Uniform Sales Act (USA) and is basically the same except for the replacement of the USA's express reliance requirement with the UCC'
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