The three principal methods

Under the Uniform Commercial Code framework, a seller may create an express warranty through:

1. An affirmation of fact or promise relating to the goods
2. A description of the goods
3. A sample or model made part of the basis of the bargain

These methods share one basic idea: the goods must conform to the representation used in the transaction.

Affirmations of fact

An affirmation of fact communicates a product characteristic that can ordinarily be evaluated as true or false.

It might concern:

• Material or composition
• Dimensions or quantity
• Capacity or output
• Condition or repair history
• Compatibility
• Included features
• Manufacturing origin or method

The seller's wording should be reviewed as a whole. A sentence may contain both promotional language and a concrete factual representation.

Promises about the goods

A seller may make a promise that goods will possess a stated quality or provide specified performance.

Possible promises include that:

• A product will operate for a stated period under defined use
• A component will support a stated load or capacity
• The goods will work with a named device or system
• A product will meet an identified standard
• The goods will arrive in a specified condition

A definite promise about product performance may create an express warranty even when it is not contained in the manufacturer's standard warranty booklet.

A future prediction, estimate, or aspiration may receive different treatment when it does not make a definite commitment about the goods sold.

Descriptions of goods

A description may create an express warranty that the goods will conform to the description.

Descriptions can identify:

• Model or product version
• Size, capacity, quantity, or dimensions
• Material, ingredients, or composition
• New, used, rebuilt, or refurbished condition
• Included accessories and features
• Compatibility and technical requirements
• Manufacturing date or origin

A seller cannot necessarily avoid the consequences of a concrete description merely by omitting a separate warranty heading.

Samples and models

Samples and models can communicate product facts without relying only on words.

A sample may represent a portion of goods later supplied in larger quantities. A model may show the expected design, construction, operation, or features of the goods to be delivered.

Evidence should show:

• What sample or model was shown
• Who presented it
• When it was shown
• What characteristic it represented
• How the delivered goods differed

Photographs, sample labels, receipts, written approvals, and messages can help preserve this evidence.

What does basis of the bargain mean?

Basis of the bargain concerns the relationship between the representation and the sales transaction.

Relevant facts can include:

• Whether the statement was made before or during the sale
• Whether it appeared in the agreed description
• Whether the buyer received the representation
• Whether later documents modified the transaction
• Whether the statement concerned the goods actually purchased

State courts may explain and apply this concept differently. The buyer should preserve the complete transaction sequence rather than relying on one isolated document.

Does the buyer have to prove reliance?

The role of reliance can vary by jurisdiction and the particular express warranty theory. Some courts focus on whether the representation became part of the basis of the bargain rather than requiring a separate traditional reliance showing.

Evidence that the representation mattered to the purchase can still be useful. This may include:

• Questions the buyer asked before purchase
• Messages discussing the feature
• Comparison shopping based on the representation
• A purchase order specifying the characteristic
• The seller's response confirming the fact

Because state law varies, avoid assuming one reliance standard applies nationwide.

Where an express warranty can appear

Can advertising create an express warranty?

Advertising may create an express warranty when it contains a sufficiently definite factual representation concerning the goods and becomes part of the transaction.

Broad promotional claims may not qualify. More specific statements about material, capacity, dimensions, compatibility, performance, or product condition may deserve closer review.

Save:

• The complete advertisement
• The date it appeared
• The page address or publication
• The product model shown
• Any qualifications or footnotes
• The order record connecting the advertisement to the purchase

Can a statement made after purchase create a warranty?

A statement first made after the completed sale may not have been part of the original basis of the bargain. However, later representations can sometimes relate to a contract modification, additional agreement, repair, replacement, or separate promise.

Determine whether:

• The original transaction was already complete
• The seller amended the agreement
• The buyer gave additional consideration
• The statement accompanied a replacement or repair
• The seller confirmed an earlier representation

The effect of a later statement depends on state law and the full transaction record.

What statements usually do not create an express warranty?

Statements that merely express value, opinion, recommendation, or general praise may not create an express warranty.

Examples might include:

• This is our finest product
• You will love it
• This should be perfect for everyone
• This is an outstanding value

Context matters. A seller with specialized knowledge who responds to a precise technical question may be making more than a casual opinion.

How to preserve evidence that a warranty was created

1. Save the exact words, description, sample, or model.
2. Record who made the representation.
3. Record when and where it was made.
4. Preserve the order, receipt, invoice, and contract.
5. Save qualifications, exclusions, and footnotes.
6. Document questions asked before purchase.
7. Preserve the goods and evidence of nonconformity.

Do not preserve only a cropped sentence when the surrounding context contains important conditions or limitations.

How an express warranty is created: key takeaway

An express warranty may be created through a factual affirmation, promise, product description, sample, or model connected to the sales bargain.

The strongest review identifies a definite product representation, its source and timing, its relationship to the sale, and the exact way the delivered goods failed to conform.

Related express warranty guides

Frequently asked questions