Step 1: Identify the legal seller
Start with the business or person that legally sold the goods.
Check:
- Receipt
- Invoice
- Order confirmation
- Sales contract
- Marketplace seller details
- Vehicle title or purchase documents
The retailer, manufacturer, marketplace, payment processor, and service-contract administrator may be different parties.
Step 2: Confirm the seller regularly deals in those goods
Record evidence showing that the seller is a merchant for goods of that kind.
Useful evidence includes:
- The seller's store or website
- Product inventory
- Advertisements
- Seller profile
- Business description
- Other comparable product listings
Step 3: Gather the complete transaction documents
Collect:
- Proof of purchase
- Product listing
- Contract description
- Return policy
- As-is language
- Merchantability disclaimer
- Written warranty
- Service contract
- Delivery and installation records
Keep copies of the terms that applied on the purchase date.
Step 4: Define the ordinary product purpose
State the normal function associated with goods of that kind.
Examples:
- A refrigerator should cool food.
- A phone should perform ordinary supported communication functions.
- A chair should support ordinary seated use.
- A power tool should perform tasks within its represented capacity.
- Food should be suitable for ordinary consumption.
Step 5: Describe the exact failure
Avoid stating only that the product is defective.
Describe:
- What happened
- When it happened
- How often it occurs
- The operating conditions
- Any error codes
- Whether the product is unsafe
- Whether surrounding property was damaged
Step 6: Document and preserve the product
Preserve:
- Photographs
- Video
- Packaging and labels
- Model and serial numbers
- Lot or batch information
- Removed components
- The product itself
Stop using the product when continued operation may be unsafe or may worsen the damage.
Step 7: Separate product failure from other causes
Review whether the problem may involve:
- Incorrect installation
- Misuse
- Overloading
- Inadequate maintenance
- External damage
- Normal wear
- Unsupported compatibility
Obtain a qualified inspection when cause is uncertain.
Step 8: Review disclaimers and as-is language
Identify whether the seller attempted to exclude or limit merchantability.
Check:
- Whether merchantability is mentioned
- Whether written language is conspicuous
- Whether as-is wording was disclosed before purchase
- Whether state law restricts the disclaimer
- Whether the seller provided a written warranty
- Whether the seller entered into a service contract
Step 9: Provide prompt written notice
Write to the seller as soon as reasonably practical after discovering the problem.
Include:
- Your name and contact information
- Purchase date and order number
- Product identification
- The ordinary purpose
- The observed failure
- The discovery date
- Supporting evidence
- The requested response
Retain proof that the seller received the notice.
Sample merchantability claim notice
Subject: Notice of possible breach of implied warranty of merchantability
I purchased [product] from [seller] on [date], order or invoice number [number].
The product's ordinary purpose is [ordinary function]. On [discovery date], it [describe the specific failure] during ordinary use.
Attached are proof of purchase, photographs, product information, and available inspection or repair records. Please confirm your inspection and proposed remedy by [reasonable date].
Step 10: Request a specific remedy
State the resolution requested.
Depending on the facts, this may include:
- Inspection
- Repair
- Replacement
- Refund
- Price adjustment
- Reimbursement of documented expenses
Do not assume that every breach automatically creates a right to the buyer's preferred remedy.
Step 11: Allow reasonable inspection
The seller may request an opportunity to inspect the goods.
Confirm:
- Inspection date
- Location
- Who will attend
- Whether testing is destructive
- Whether parts will be removed
- Who will preserve the evidence
Photograph the product before and after inspection.
Step 12: Request the seller's written position
Ask the seller to explain:
- Whether it accepts or denies the claim
- The stated cause of failure
- The warranty or disclaimer relied upon
- The proposed remedy
- Who will pay shipping, diagnosis, and repair costs
- Any appeal or escalation procedure
When the seller blames the manufacturer
Ask the seller to identify the specific evidence supporting a manufacturing-defect conclusion.
Send a separate claim to the manufacturer when written manufacturer coverage may apply, but preserve the merchantability claim against the seller where appropriate.
The seller and manufacturer should not be assumed to have identical obligations.
When the seller relies on an as-is clause
Request:
- The complete clause
- The document containing it
- Evidence showing when it was disclosed
- The seller's explanation of its legal effect
Review written warranties, service contracts, express promises, required disclosures, fraud issues, and state restrictions separately.
Escalation options
When direct resolution fails, possible next steps may include:
- Supervisor or corporate escalation
- Manufacturer warranty claim
- Service-contract claim
- State consumer-protection complaint
- Industry dispute program
- Mediation or arbitration
- Small claims court
- Advice from a qualified attorney
The FTC accepts reports and provides consumer guidance but generally does not resolve individual warranty disputes.
Do not miss notice or filing deadlines
Track:
- Purchase date
- Delivery date
- Discovery date
- Notice date
- Written warranty term
- Service-contract term
- Contractual dispute deadlines
- Applicable statute of limitation
Repair negotiations do not necessarily extend legal deadlines.
Merchantability claim checklist
- Seller identified
- Merchant status documented
- Proof of purchase collected
- Ordinary purpose defined
- Failure documented
- Cause investigated
- Product preserved
- Disclaimers reviewed
- Written notice sent
- Delivery proof retained
- Specific remedy requested
- Deadlines recorded
How to make a merchantability claim: key takeaway
A strong merchantability claim identifies the merchant seller, ordinary product purpose, applicable merchantability standard, failure, timing, evidence, and requested remedy.
Notify the seller promptly, preserve the product, request a written decision, and review state-specific rights and deadlines before relying only on informal customer-service discussions.
Review a product problem
Use the Merchantability Product-Fitness Checker
Review the merchant seller, product description, ordinary purpose, failure, timing, disclaimers, evidence, notice, and next steps.
Frequently asked questions
Who should receive a merchantability claim?
The merchant seller should generally receive notice. A separate manufacturer or service-contract claim may also be appropriate.
What should the written notice include?
Identify the purchase, product, ordinary purpose, specific failure, discovery date, supporting evidence, and requested response.
Do I need to know the exact cause before notifying the seller?
Not necessarily. Initial notice can describe the failure while requesting inspection and further evaluation.
Should I allow the seller to inspect the product?
Generally, provide a reasonable inspection opportunity when safe and practical, while preserving evidence.
Can the FTC resolve my individual warranty claim?
The FTC provides guidance and accepts reports, but it generally does not resolve individual disputes or obtain personal refunds.
Primary references
- UCC Section 2-314: Implied Warranty of Merchantability
- UCC Section 2-607: Acceptance and Notice of Breach
- UCC Section 2-714: Buyer's Damages for Accepted Goods
- UCC Section 2-715: Incidental and Consequential Damages
- UCC Section 2-719: Contractual Limitation of Remedy
- UCC Section 2-725: Statute of Limitations
- FTC Consumer Advice: Warranties
- FTC: Solving Problems With a Business
- FTC Businessperson's Guide to Federal Warranty Law