Sec. 41. Definition Of Warranty

A warranty is a part of the contract of sale. It consists in the assertion of some fact concerning the goods put forth to induce the contract and which did induce it and whose truth is regarded by the buyer as essential to the seller's performance of his contract. But if an assertion made by the seller does not so enter into his contract as to become a part thereof it is not a warranty, and its truth is immaterial. Warranties are express or implied.

When there is a contract of sale, the buyer may make assertions in respect to the goods. He is indeed very prone to do this, for it may be by such assertions that he is able to close the transaction. It is a matter of common knowledge that a seller will "puff his wares." Indeed he may make affirmations without any words spoken. Thus by his very possession of the goods and by the fact that he offers to sell them, he affirms he is the owner of them.

Has the buyer any remedy if these assertions are false? Or does he act entirely at his own risk? Suppose the seller states that the stone he offers to sell is a diamond, and it turns out paste, will the court say that he can return the stone, or have his money back, or his damages ? Or, what if the seller thought it was a diamond - is this material ?

The law is that some assertions in respect to goods sold cannot be broken without penalty because they become a part of the contract, and they become so irrespective of the seller's belief whether they were true or false.

We have then to inquire, what assertions in respect to quality, title, fitness, value, etc., become a part of the contract, and which ones do not.

Generally speaking, we may say that whatever assertion is made for the purpose of being relied upon, and in its nature is worthy of belief, and is relied upon, becomes an essential term in the contract of sale, and if false, there is then a breach of contract, for which the buyer has his remedy.

We have already indicated that warranties are express and implied. First, let us consider express warranties, and then those that are implied from the circumstances.