The UCC excludes some opinions and commendations

Under the Uniform Commercial Code framework, a statement merely affirming the value of goods or purporting to be the seller's opinion or commendation does not create an express warranty.

This means that statements of general praise may differ from statements describing a measurable product characteristic.

Compare:

• This is an excellent product.
• This product contains a 500-watt motor.

The first statement is broad praise. The second communicates a specific technical fact that can be tested.

General sales praise

General sales praise is sometimes called puffery. It commonly uses broad, subjective language that does not provide a clear standard for determining conformity.

Examples may include:

• Our finest product
• A fantastic value
• Top-quality design
• The perfect choice
• An outstanding product
• The best available

These statements may influence a buyer without promising a measurable product fact.

A claim such as the best battery life in its category may contain a comparative factual assertion if the category and measurement can be identified. The surrounding context matters.

Seller opinions

A seller may express a personal judgment or recommendation rather than state a product fact.

Examples might include:

• I think this is the better model.
• In my opinion, this looks more durable.
• I would choose this one.
• This should be a good option for most people.

An opinion can become more factual when the seller provides a concrete reason. For example, stating that one model uses a particular material or has a specified capacity introduces verifiable facts.

Vague performance claims

A statement that a product works great, performs well, or lasts a long time may be too vague to establish a specific obligation.

A statement becomes more concrete when it identifies:

• A measurable output
• A stated operating period
• Defined testing conditions
• A particular load or capacity
• A named performance standard

Compare lasts a long time with provides ten hours of operation under the stated test conditions. The latter is easier to evaluate as a factual promise.

Predictions and estimates

Predictions and estimates may not create express warranties when they clearly communicate uncertainty rather than a definite product fact.

Examples can include:

• Estimated operating life
• Approximate delivery performance
• Expected maintenance cost
• Projected resale value
• Predicted future market demand

A labeled estimate is not automatically free from warranty consequences. The seller's expertise, method, wording, and degree of certainty may matter.

A specific statement presented as an established product capability may be treated differently from a clearly qualified estimate.

Statements unrelated to the goods

An express warranty under UCC Section 2-313 concerns affirmations, promises, descriptions, samples, or models relating to the goods.

Statements about unrelated matters may not create an express warranty concerning product conformity.

Examples might include:

• A seller's general business reputation
• A hope about the buyer's future satisfaction
• A statement about unrelated services
• A prediction about market conditions

A separate contractual promise may still exist even when the statement is not an express warranty concerning the goods.

Statements made too late for the original bargain

A statement first made after the sale may not have formed part of the original basis of the bargain.

However, later statements may relate to:

• A contract modification
• A replacement product
• A repair agreement
• An additional purchase
• A separate promise
• Confirmation of an earlier representation

Timing alone does not resolve every issue. Review whether the parties changed or supplemented the transaction.

Statements the buyer never received

A product statement that the buyer did not receive before or during the transaction may face questions about whether it became part of the basis of the bargain.

For example, a specification appearing only on a page unrelated to the purchased model may not have the same transaction connection as the description appearing in the buyer's order.

Preserve evidence showing:

• Where the statement appeared
• Which product it described
• When the buyer saw or received it
• How it connected to the purchase

Statements about another product or model

A factual claim concerning one model does not necessarily create a warranty for another model.

Confusion can arise when:

• Several product variations share one page
• An advertisement shows an upgraded model
• Specifications are copied between listings
• A display item differs from the ordered product
• The invoice identifies another configuration

Match the representation to the exact model, variation, size, region, configuration, and condition purchased.

Clearly disclosed tolerances and variations

Some products are sold subject to stated tolerances, natural variations, measurement methods, or production differences.

Examples may include:

• Color variation in natural materials
• Nominal rather than exact dimensions
• Capacity measured under an industry standard
• Permitted manufacturing tolerances
• Approximate weights or quantities

When the delivered goods fall within a clearly disclosed tolerance, they may still conform to the complete description.

A seller cannot necessarily rely on a tolerance that was hidden, ambiguous, or inconsistent with a more specific promise.

Can an as-is sale prevent an express warranty?

As-is language commonly addresses implied warranties. It does not necessarily erase a specific express factual promise about the goods.

Under the UCC framework, language creating an express warranty and language attempting to negate or limit it should be interpreted as consistent where reasonable. Negation may be ineffective when the two cannot reasonably be reconciled.

A seller may create a dispute by describing goods with a specific characteristic and then relying on general as-is language to deny that same characteristic.

Can a disclaimer prevent warranty creation?

A clear disclaimer or limitation may affect warranty rights, but it should be read together with the affirmative product representations.

Review:

• The exact factual promise
• The disclaimer language
• Whether the provisions can be reconciled
• Where each statement appeared
• Whether the disclaimer was conspicuous
• The applicable state law

A remedy limitation is also different from denying that a warranty exists. The seller may acknowledge the promise while limiting the remedy to repair or replacement.

Fact or opinion review checklist

1. Write down the exact statement.
2. Identify every measurable product claim.
3. Separate concrete facts from promotional adjectives.
4. Determine whether the statement related to the goods.
5. Identify when and where it appeared.
6. Match it to the purchased product variation.
7. Review qualifications, tolerances, and footnotes.
8. Compare it with the delivered goods.

What does not create an express warranty: key takeaway

Opinions, commendations, vague praise, uncertain estimates, unrelated statements, and representations lacking a meaningful transaction connection may not create express warranties.

The strongest distinction is between subjective sales language and a definite product fact capable of being tested. Context, specificity, timing, seller expertise, and documentation remain important.

Related express warranty guides

Frequently asked questions