Express warranties are those over which the parties dickered - or could have. Express warranties go to the essence of the bargain. An implied warranty, by contrast, is one that circumstances alone, not specific language, compel reading into the sale. In short, an implied warranty is one created by law, acting from an impulse of common sense.


Implied Warranty of Merchantability

Section 2-314 of the UCC lays down the fundamental rule that goods carry an implied warranty of merchantability if sold by a merchant-seller. What is merchantability? Section 2-314(2) of the UCC says that merchantable goods are those that conform at least to the following six characteristics:

  • Pass without objection in the trade under the contract description
  • In the case of fungible goods, are of fair average quality within the description
  • Are fit for the ordinary purposes for which such goods are used
  • Run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved
  • Are adequately contained, packaged, and labeled as the agreement may require
  • Conform to the promise or affirmations of fact made on the container or label if any

Md. Code Ann. Com. Law § 2-314(2) (LexisNexis 2021).

For the purposes of Section 2-314(2)(c) of the UCC, selling and serving food or drink for consumption on or off the premises is a sale subject to the implied warranty of merchantability - the food must be "fit for the ordinary purposes" to which it is put. The problem is common: you bite into a cherry pit in the cherry-vanilla ice cream, or you choke on the clam shells in the chowder. Is such food fit for the ordinary purposes to which it is put? There are two schools of thought. One asks whether the food was natural as prepared. This view adopts the seller's perspective. The other asks what the consumer's reasonable expectation was.

The first test is sometimes said to be the "natural-foreign" test. If the substance in the soup is natural to the substance - as bones are to fish - then the food is fit for consumption. The second test, relying on reasonable expectations, tends to be the more commonly used test. See Yong Cha Ha v. Marriott Corp., 656 F. Supp. 445 (D. Md. 1987) (adopting reasonable expectation test in finding no breach of warranty when customer found part of trachea or aorta in fried chicken).


Fitness for a Particular Purpose

Section 2-315 of the UCC creates another implied warranty. Whenever a seller, at the time she contracts to make a sale, knows or has reason to know that the buyer is relying on the seller's skill or judgment to select a product that is suitable for the particular purpose the buyer has in mind for the goods to be sold, there is an implied warranty that the goods are fit for that purpose. Md. Code Ann., Com. Law § 2-315 (LexisNexis 2021). 

For example, you go to a hardware store and tell the salesclerk that you need a paint that will dry overnight because you are painting your front door and a rainstorm is predicted for the next day. The clerk gives you a slow-drying oil-based paint that takes two days to dry. The store breached an implied warranty of fitness for particular purpose.

Note the distinction between "particular" and "ordinary" purposes. Paint is made to color and when dry to protect a surface. That is its ordinary purpose, and had you said only that you wished to buy paint, no implied warranty of fitness would have been breached. It is only because you had a particular purpose in mind that the implied warranty arose. Suppose you had found a can of paint in a general store and told the same tale, but the proprietor had said, "I don't know enough about that paint to tell you anything beyond what's on the label; help yourself". Not every seller has the requisite degree of skill and knowledge about every product he sells to give rise to an implied warranty. Ultimately, each case turns on its particular circumstances.

Source: CCBC, https://ccbclegalstudiesbusinesslaw.wordpress.com/unit-3-ucc-and-product-liability/product-liability-and-warranties/
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