Site Loader
Rock Street, San Francisco

APPLICABLE LAW

Construction defects implicate both federal and state law,
though typically these claims are litigated (or arbitrated) under state law.
While many claims and defenses are created by statute, decisional case law
plays an integral role in not only defining the scope and application of these
claims and defenses, but sometimes in limiting them. Conversely, as has been
seen with common law warranties and design professional liability, statutes
sometimes limit or expressly overrule decisional law.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

.

.

.

.

EXPRESS WARRANTY CLAIMS

Express warranties are, as the name suggests, created by express
contractual obligations, and their scope is limited by their terms.1
Express warranties do not always require words to be created, but can derive
from the conduct of the seller such as where the seller shows the buyer a
blueprint or other description of the goods sold.2 Under
Florida law, written warranties are treated like a contract between a buyer and
seller, and may therefore limit or foreclose available remedies.3
For instance, developers may properly disclaim express warranties in the sale
of condominiums.4
On the other hand, a contractor

CLAIMS

Express warranties are, as the name suggests, created by express
contractual obligations, and their scope is limited by their terms.1
Express warranties do not always require words to be created, but can derive
from the conduct of the seller such as where the seller shows the buyer a
blueprint or other description of the goods sold.2 Under
Florida law, written warranties are treated like a contract between a buyer and
seller, and may therefore limit or foreclose available remedies.3
For instance, developers may properly disclaim express warranties in the sale
of condominiums.4
On the other hand, a contractor

routinely warrants that its work will be free from defects
and will conform to the requirements of the “Contract Documents.” But such
warranties exclude damage or defects caused from the owner by abuse, improper
maintenance, or operation, or from normal wear and tear.5 The contractor
generally also provides a one year warranty against defects appearing in
workmanship or materials during the warranty period. Such warranty requires
that the owner provide notice of the defect during the warranty period and
provide a reasonable opportunity to make repairs. Failure to provide notice can
result in the owner’s waiver of the right to require the contractor to correct
the deficiency or to make a claim for breach of warranty. Where the contractor
is timely notified and fails or refuses to make repairs, the owner may then do
so and pursue recovery for the costs under a breach of warranty claim.6

With respect to the sale of “goods” (materials) under
Florida’s Uniform Commercial Code (“UCC”),9
any affirmation of fact or promise made by the seller to the buyer that relates
to the warranties in a subcontract agreement that run in favor of the contractor
either directly or by a “flow-down” provision that binds the subcontractor to
the same extent that the contractor is bound to the owner under the prime
contract. The contractor’s warranty to correct defects in the work does not
generally cover defects in design where the owner has hired an architect to
design the improvements.7
Under these circumstances, the owner impliedly warrants that the contractor will
be able to build what is shown in the plans and specifications and that the
completed improvements will be fit for their intended purposes.8

With respect to the sale of “goods” (materials) under
Florida’s Uniform Commercial Code (“UCC”),9
any affirmation of fact or promise made by the seller to the buyer that relates
to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise. Further,
any description of the goods that is made part of the basis of the bargain
creates an express warranty that the goods shall conform to the description.
And any sample or model which is made part of the basis of the bargain creates
an express warranty that the whole of the goods shall conform to the sample or
model.10
Formal words such as “warrant” or “guarantee” or that the seller has a
“specific intention” to make a warranty are not necessary to create an express
warranty; however, an affirmation merely of the value of the goods or a
statement purporting to be merely the seller’s opinion or commendation of the
goods does not create a warranty.11

subcontractor as part of a project close-out, an owner is an express
intended beneficiary and may recover under the warranty. However, such
warranties typically have exclusions and are subject to certain conditions
being met. For instance, such warranties commonly do not cover damage caused by
excessive wear and tear, abuse, or modifications to the product, and an owner
must perform routine maintenance. Failure to comply with these conditions may
void an otherwise valid warranty.13

 

1SeeCipollone
v. Liggett Group, Inc., 505 U.S. 504, 525(1992) (“A manufacturer’s
liability for breach of an express warranty derives from, and is measured by,
the terms of that warranty.”).

2Miles
v. Kavanaugh, 350 So. 2d 1090(Fla. 3d DCA 1977).

Post Author: admin

x

Hi!
I'm Velma!

Would you like to get a custom essay? How about receiving a customized one?

Check it out