Confessions of a Litigious Mind

The random, irrelevant musings of a law school graduate.

Wednesday, February 15, 2006

express WARRANTy?

tom cruise goes to an herbal healer because he is having relationship troubles with his wife, katie holmes. times are tough for tomkat. he explains to the healer that he thinks everyone might be right; he might be gay. evidently he is having trouble rocking katie's world, or even giving her any pleasure whatsoever for that matter. he asks the herbalist if there's anything he can do.

the healer replies that he makes a special cherry pie that should work for this type of situation. he puts a secret ingredient in it, strong enough to de-gayify any major celebrity. he tells tom that he made one such pie for kevin federline, which enabled him to marry britney spears. tom places an order for the pie. two days later he picks it up, takes it home, and eats it. that night, he takes katie for a roll in the supportive hay, but to his displeasure, he's still gay. he sues the healer for breach of express warranty under UCC 2-313. what result?

first, we must broach the question of whether a warranty existed in the first place. to have an express warranty under 2-313, one requires 1) an 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, 2) any description of the goods which is made part of the basis of the bargain, or 3) any sample or model which is made part of the basis of the bargain. given the facts above, a warranty is probably created by a description of the goods when the healer tells tom that it is "strong enough to de-gayify any major celebrity." it is also arguable that the healer's discussion of k-fed acts as a model. now, it is certainly not pleasing to look at k-fed, and it's even more painful to listen to him, but that is not the meaning of model in the 2-313 context. rather, a model is an example of the product which acts as a representation of the product the buyer is considering purchasing. tom's argument that k-fed is a model might fail, however, because the good is the pie itself, and the healer really spoke about the effect the pie had, namely the ability of k-fed to marry britney. that may be a question of fact for the jury.

it is likely that the description of the goods could be considered the basis of the bargain because it seems clear that tom relied upon the healer's representation of the effect of the pie in his decision to purchase it. comment 3 to 2-313 states that reliance is not necessary to form the basis of the bargain, however, where there is reliance, it certainly is a part of the basis. this is fairly easily categorized as the basis of the bargain.

the final question is was this in fact a breach of the warranty? this is also fairly simple, because the facts show that in the end tom was in fact still gay. since the warranty promised that the cherry pie would de-gayify tom, clearly it did not perform adequately.

well played, mr cruise. you will win some money back. however, your pride and self-respect were lost long ago, and can never be reclaimed.

*big ups to anyone who got the warrant-cherry pie reference


At 2/15/2006 4:26 PM, Blogger JLee said...

well, now you gave it away, dammit!

At 2/15/2006 4:36 PM, Blogger Matt said...

hey hows the adsense work out? i was thinking of puting it on the monkey for a while but again, i haven't bothered. i was thinkning of using it if/when i ever turn it into something more "real".

no i didn't get the warrant reference.

At 2/15/2006 4:50 PM, Blogger law monkey said...

i have to hand it to you, dicta. you make sales problems far more interesting than your prof did in his textbook (despite the fact that his are based on more, um, realistic fact patterns).

in any case, i think YOU ought to write the sales textbook, and not JM. honestly.

At 2/16/2006 11:52 AM, Blogger Holmes said...

Was the seller of cherry pie a merchant?


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