默示担保(“

三、默示担保(“Implied Warranty”)

货物买卖法中的默示担保指在法律中默示存在的，不需要卖方特别指出的，由卖方承担的品质担保义务，除非根据2－316卖方对品质担保进行了特别排除。一般包括:

1.商销性的默示担保

如果卖方在营业中出售货物，则在这类商品的买卖合同中，卖方应承担一项默示担保义务，即保证他出售的货物必须具有适合一般商销性品质。统一商法典2－314(2)对于判断如何构成一般商销性品质列举了不同的标准:“(a)pass without objection in the trade under the contract description;(b)in the case of fungible goods，are of fair average quality within the description;(c)are fit for the ordinary purposes for which such goods are used;(d)run，within the variations permitted by the agreement，of even kind，quality and quantity within each unit and among all units involved;(e)are adequately contained，packaged，and labeled as the agreement may require;(f)conform to the promise or affirmations of fact made on the container or label if any”。同时在第(3)款中写明“implied warranties may arise from course of dealing or usage of trade”。

2.关于符合特定目的的默示担保

统一商法典2－315规定，卖方在订立合同时有理由知道货物将要用于某种特定的用途，而且买方相信卖方具有挑选或提供该用途的商品的技能和判断力，则卖方就应承担所售货物必须符合这种特定用途的默示担保义务。

案例19

ROYAL BUSINESS MACHINES，

INC.v.LORRAINE CORP.

633 F.2d 34(1980)．

BAKER，District Judge.

This is an appeal from a judgment of the district court entered after a bench trial awarding Michael L.Booher and Lorraine Corp.(Booher)$ 1 171 216.16 in compensatory and punitive damages against Litton Business Systems，Inc.and Royal Business Machines，Inc.(Royal)．The judgment further awarded Booher attorneys' fees of$ 156 800.00.It denied，for want of consideration，the recovery by Royal of a $ 596 921.33 indebtedness assessed against Booher earlier in the proceedings in a summary judgment.The judgment also granted Royal a set-off of $ 12 020.00 for an unpaid balance due on computer typewriters.

The case arose from commercial transactions extending over a period of 18 months between Royal and Booher in which Royal sold and Booher purchased 114 RBC I and 14 RBC II plain paper copying machines.In mid-August 1976，Booher filed suit against Royal in the Indiana courts claiming breach of warranties and fraud.On September 1，1976，Royal sued Booher on his financing agreements in the district court and also removed the state litigation to the district court where the cases were consolidated.

We reverse and remand for a new trial on the grounds set forth in this opinion.

Express Warranties

We first address the question whether substantial evidence on the record supports the district court's findings that Royal made and breached express warranties to Booher.The trial judge found that Royal Business Machines made and breached the following express warranties:

(1)that the RBC Model I and II machines and their component parts were of high quality;

(2)that experience and testing had shown that frequency of repairs was very low on such machines and would remain so;

(3)that replacement parts were readily available;

(4)that the cost of maintenance for each RBC machine and cost of supplies was and would remain low，no more than 1/2 cent per copy;

(5)that the RBC machines had been extensively tested and were ready to be marketed;

(6 )that experience and reasonable projections had shown that the purchase of the RBC machines by Mr.Booher and Lorraine Corporation and the leasing of the same to customers would return substantial profits to Booher and Lorraine;

(7)that the machines were safe and could not cause fires;and

(8)that service calls were and would be required for the RBC Model II machine on the average of every 7 000 to 9 000 copies，including preventive maintenance calls.

Substantial evidence supports the court's findings as to Numbers 5， 7，8，and the maintenance aspect of Number 4，but，as a matter of law，Numbers 1，2， 3，6，and the cost of supplies portion of Number 4 cannot be considered express warranties.

Paraphrasing U.C.C.s 2－313 as adopted in Indiana，an express warranty is made up of the following elements:(a)an affirmation of fact or promise，(b)that relates to the goods，and(c)becomes a part of the basis of the bargain between the parties.When each of these three elements is present，a warranty is created that the goods shall conform to the affirmation of fact or to the promise.

Ind.Code s 26－1－2－313(1976)provides:

(1)Express warranties by the seller are created as follows:

(a)any 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 creates an express warranty that the goods shall conform to the affirmation or promise.

(b)any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c)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.

(2)It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant”or “guarantee”or that he had a specific intention to make a warranty，but 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.

The decisive test for whether a given representation is a warranty or merely an expression of the seller's opinion is whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment.Weiss v.Rockwell Mfg.Co.，9 Ill.App.3d 906，293 N.E.2d 375(1977)，citing Keller v.Flynn，346 Ill.App.499，105 N.E.2d 532，536(1952);* 42 GeneralSupply＆EquipmentCo.v.Phillips， 490S.W.2d913(Tex.Civ.App.1972)．General statements to the effect that goods are “the best， ”Thompson Farms，Inc.v.Corno Feed Products，173 Ind.App.682， 366 N.E.2d 3(1977)，or are “of good quality， ”Olin-Mathieson Chemical Corp.v.Moushon，93 Ill.App.2d 280，235 N.E.2d 263(1968)，or will “last a lifetime”and be“in perfect condition， ”Performance Motors，Inc.v.Allen，280 N.C.385，186 S.E.2d 161(1972)，are generally regarded as expressions of the seller's opinion or “the puffing of his wares”and do not create an express warranty.

No express warranty was created by Royal's affirmation that both RBC machine models and their component parts were of high quality.This was a statement of the seller's opinion，the kind of“puffing”to be expected in any sales transaction，rather than a positive averment of fact describing a product's capabilities to which an express warranty could attach.

Similarly，the representations by Royal that experience and testing had shown that the frequency of repair was“very low”and would remain so lack the specificity of an affirmation of fact upon which a warranty could be predicated.These representations were statements of the seller's opinion.

The statement that replacement parts were readily available is an assertion of fact，but it is not a fact that relates to the goods sold as required by Ind.Code s 26－1－2－313(1)(a)and is not an express warranty to which the goods were to conform.Neither is the statement about the future costs of supplies being 1/2 cent per copy an assertion of fact that relates to the goods sold，so the statement cannot constitute the basis of an express warranty.

It was also erroneous to find that an express warranty was created by Royal's assurances to Booher that purchase of the RBC machines would bring him substantial profits.Such a representation does not describe the goods within the meaning of U.C.C.s 2－313(1)(b)，nor is the representation an affirmation of fact relating to the goods under U.C.C.s 2－313(1)(a)．It is merely sales talk and the expression of the seller's opinion.See Regal Motor Products v.Bender，102 Ohio App.447，139 N.E.2d 463，465(1956)(representation that goods were “readily saleable”and that the demand for them would create a market was not a warranty)．See also Conant v.Terre Haute National State Bank，121 Ind.323，22 N.E.250，251(1889);Harness v.Horne， 20 Ind.App.134， 50 N.E.395， 397(1898)．

On the other hand，the assertion that the machines could not cause fires is an assertion of fact relating to the goods，and substantial evidence in the record supports the trial judge's findings that the assertion was made by Royal to Booher.The same may be said for the assertion that the machines were tested and ready to be marketed.See Bemidji Sales Barn v.Chatfield，312 Minn.11，250 N.W.2d 185(1977)(seller's representation that cattle“had been vaccinated for shipping fever and were ready for the farm”constituted an express warranty)．See generally R.Anderson，Uniform Commercial Code s 2－313:36(2d ed.1970)(author asserts that seller who sells with seal of approval of a third person，e.g.，a testing laboratory，makes an express warranty that the product has been tested and approved and is liable if the product was in fact not approved)．The record supports the district court's finding that Royal represented that the machines had been tested.

As for findings 8 and the maintenance portion of Number 4，Royal's argument that those statements relate to predictions for the future and cannot qualify as warranties is unpersuasive.］An expression of future capacity or performance can constitute an express warranty.In Teter v.Shultz，110 Ind.App.541， 39 N.E.2d 802， 804(1942)，the Indiana courts held that a seller's statement that dairy cows would give six gallons of milk per day was an affirmation of fact by the seller relating to the goods.It was not a statement of value nor was it merely a statement of the seller's opinion.The Indiana courts have also found that an express warranty was created by a seller's representation that a windmill was capable of furnishing power to grind 20 to 30 bushels of grain per hour in a moderate wind and with a very light wind would pump an abundance of water.Smith v.Borden， 160 Ind.223， 66 N.E.681(1903)．Further，in General Supply and Equipment Co.v.Phillips，supra，the Texas courts upheld the following express warranties made by a seller of roof panels:(1)that tests show no deterioration in 5 years of normal use;(2)that the roofing panels won't turn black or discolor ...even after years of exposure;and(3)that the panels will not burn，rot，rust，or mildew.Snow's Laundry and Dry Cleaning v.Georgia Power Co.，61 Ga.App.402，6 S.E.2d 159(1939)，impliedly recognized that a warranty as to future gas consumption following installation of gas equipment was possible.In holding that no warranty was created in that particular case，the Georgia court noted :“The statements made by Spencer were denominated by him as estimates，nowhere did he warrant or guarantee that the gas consumption would not exceed $ 230.50 per month.”61 Ga.App.at 405， 6 S.E.2d at 162.See Matlack，Inc.v.Butler Mfg.Co.， 253 F.Supp.972(E.D.Pa.1966)．

Whether a seller affirmed a fact or made a promise amounting to a warranty is a question of fact reserved for the trier of fact.General Supply and Equip.Co.v.Phillips，supra.Substantial evidence in the record supports the finding that Royal made the assertion to Booher that maintenance cost for the machine would run 1/2 cent per copy and that this assertion was not an estimate but an assertion of a fact of performance capability.［FN5］

While substantial evidence supports the trial court's findings as to the making of those four affirmations of fact or promises，the district court failed to make the further finding that they became part of the basis of the bargain.Ind.Code s 26－1－2－313(1)(1976)．While Royal may have made such affirmations to Booher，the question of his knowledge or reliance is another matter．

This case is complicated by the fact that it involved a series of sales transactions between the same parties over approximately an 18－month period and concerned two different machines.The situations of the parties，their knowledge and reliance，may be expected to change in light of their experience during that time.An affirmation of fact which the buyer from his experience knows to be untrue cannot form a part of the basis of the bargain.City Machine ＆Mfg.Co.v.A.＆A.MachineryCorp.， 4UCCRS461(E.D.N.Y.1967)．See generally R.Anderson，Uniform Commercial Code，s 22－313:18(2d ed.1970)．Therefore，as to each purchase，Booher's expanding knowledge of the capacities of the copying machines would have to be considered in deciding whether Royal's representations were part of the basis of the bargain.The same representations that could have constituted an express warranty early in the series of transactions might not have qualified as an express warranty in a later transaction if the buyer had acquired independent knowledge as to the fact asserted.

The trial court did not indicate that it considered whether the warranties could exist and apply to each transaction in the series.Such an analysis is crucial to a just determination.Its absence renders the district court's findings insufficient on the issue of the breach of express warranties.

Since a retrial on the questions of the breach of express warranties and the extent of damages is necessary，we offer the following observations.The court must consider whether the machines were defective upon delivery.Breach occurs only if the goods are defective upon delivery and not if the goods later become defective through abuse or neglect.Chisholm v.J.R.Simplot Co.，94 Idaho 628， 495 P.2d 1113(1972)．

In considering the promise relating to the cost of maintenance，the district court should determine at what stage * 45 Booher's own knowledge and experience prevented him from blindly relying on the representations of Royal.A similar analysis is needed in examining the representation concerning fire hazard in the RBC I machines.The court also should determine when that representation was made.If not made until February 1975，the representation could not have been the basis for sales made prior to that date.

思考题

1.UCC中规定的构成明示担保的条件是什么?

2.如何区分对于事实的陈述和主观意见?

3.本案中上诉法院对于事实的认定中认为哪些构成明示担保，原因是什么?

4.双方的分批交易持续了18个月对于品质担保的认定有何影响?

案例20

Delano Growers' Co-op．Winery v．

Supreme Wine Co．，Inc．

393 Mass．666， 473 N．E．2d 1066， 40 UCC Rep．Serv．93

Decided Jan．21， 1985．

NOLAN，Justice．

The plaintiff，Delano Growers' Cooperative Winery(Delano)，appeals from a final judgment dismissing its complaint and awarding $ 160 634，with interest，to the defendant，Supreme Wine Co．，Inc．(Supreme)，on its counterclaim．Supreme appeals from that portion of the judgment which granted Delano an “offset ”of$ 25 823.25 to Supreme's damages under the counterclaim．For the reasons stated below，we affirm the judgment．

Delano filed a complaint in Suffolk County Superior Court seeking $ 25 823.25 for wine sold and delivered．Supreme admitted* 668 receipt of the wine and filed a counterclaim for breach of contract alleging that earlier shipments of wine for which payment had been made and all of the wine for which no payment had been made had spoiled due to the presence of lactobacillus trichodes(Fresno mold)．As a defense，Supreme asserted that it did not owe Delano $ 25 823.25 because the wine was not merchantable．Supreme also sought incidental and consequential damages alleging that the “sick wine”destroyed its reputation and market thereby forcing the company into liquidation．

The facts as found by the master and accepted by the judge may be summarized as follows．Supreme operated a wine bottling plant in Boston from 1935 to November，1978．It purchased finished wine，ready for bottling and consumption，from California， selling it to retailers after bottling under Supreme's label．

In 1968，Supreme began buying sweet wine from Delano，a California winery．By the spring of 1973，Supreme was purchasing all its sweet wine from Delano．Delano shipped this wine to Supreme's bottling plant in Boston in tank cars．When the wine arrived，Supreme took samples from each compartment* 670 of the tank cars．The samples were labeled，dated，sealed，and kept in Supreme's safe．Supreme then pumped the wine into redwood vats in its building．The wine was pumped through a filter into storage tanks from which it was later filtered into bottles for delivery．

Until April or May， 1973，Supreme did not experience any difficulty with Delano wine．Supreme then began receiving widespread returns of certain sweet wine from its customers．The wine was producing sediment，was cloudy，and contained a cottony or hairy substance．Supreme could identify the defective sweet wine as Delano wine because it purchased all its sweet wine from Delano．Supreme also matched the returned defective wine with the samples taken from the Delano wine on delivery．This identification was corroborated somewhat by shipment records，the dates of bottling and the color to which the Delano wine was blended．

Supreme made oral reports and complaints about the problem to Delano．It also sent Delano samples from the Delano shipment．When the help promised by Harold Roland，Delano's manager，did not materialize，Supreme purchased wine from another California grower in June，July，and August，1973．Supreme bottled and sold that wine and received no complaints or returns on it．Roland，with renewed promises of assistance，induced Supreme to recommence purchasing from Delano in September， 1973．

Delano made four shipments of sweet wine to Supreme between September 28 and December 20，1973．Each shipment invoice stated that payment was due forty-five days from the invoice date．Supreme paid all but the last invoice，which was in the amount of $ 25 823.25．It withheld payment for that amount as customers continued to return defective wine which was identified as Delano wine．When oral reports and complaints evoked no tangible help，Vito Bracciale，assistant to Supreme's president，wrote to Roland on April 9， 1974．This letter requested assistance and explained Supreme's crisis caused by the defective wine．The letter also indicated the high number of returns caused by this defective wine．

In response to this letter， Delano sent James Lunt， an assistant winemaker，to Supreme's bottling plant．His microscopic examination of the defective wine and a microscopic examination by Delano's chemist in California showed that the wine contained Fresno mold．Lunt had earlier observed the mold in the samples returned to Delano by Supreme．These were samples from the tank cars taken on arrival at Supreme and samples from wine returned by Supreme's customers．

While Lunt was at Supreme，customers returned a number of cases of Delano wine containing Fresno mold．After examining these returns，Lunt told Supreme to pasteurize，refilter，rebottle，and resell the defective wine．Supreme followed Lunt's directions and reprocessed 8 000 cases of spoiled wine(5 000 cases returned from customers and 3 000 cases still on hand)．During this process， 1 000 cases were lost through breakage，spillage，and shrinkage．Supreme sold the remaining cases of reprocessed wine at a reduced rate．

Delano's breach of the implied warranty of merchantability．

This sale of wine by Delano is governed by the Uniform Commercial Code，G．L．c．106．Delano impliedly warranted that the goods were of merchantable quality．G．L．c．106，§ 2－314．See Regina Grape Prods．Co．v．Supreme Wine Co．，357 Mass．631，635，260 N．E．2d 219(1970)．This warranty required the wine to “pass without objection in the trade under the contract description”and be reasonably suited for ordinary uses for which goods of that kind are sold．G．L．c．106，§ 2－314(2)(a)．See Vincent v．Nicholas E．Tsiknas Co．，337 Mass．726，729，151 N．E．2d 263(1958);Gilbert ＆ Bennett Mfg．Co．v．Westinghouse Elec．Corp．，445 F．Supp．537， 548(D．Mass．1977)．

The contract in this case required Delano to deliver “finished wine”to Supreme．Delano contends that，when it delivered wine that appeared good and which could be bottled，its obligation was satisfied．In support，Delano argues that all California sweet wine contained Fresno mold．Therefore，the presence of Fresno mold could not cause a wine to be unmerchantable．Furthermore，Delano states that an alleged trade usage required Supreme to add sulfur dioxide to the wine to inhibit further growth of these bacteria．Delano's arguments fail to persuade us．

Delano argues that uncontroverted testimony indicated that all California sweet wine contained Fresno mold．The judge acknowledged this testimony．However，the judge found that Supreme never experienced any trouble with bacteria until the 1973 problem with Delano wine．The sweet wine which Supreme bought from other California growers in 1973 did not present any bacterial problems．None of this wine was returned with Fresno mold．Furthermore，the judge found that the bacterial problem could have been prevented and controlled by Delano．Although Fresno mold may have been present in all California sweet wine，there is no indication that it was allowed to go unchecked and thereby destroy the merchantability of finished wine．Supreme's prior experience with Delano and its experience with other California sweet wine in 1973 indicate that the mold could be controlled．The presence of Fresno mold，as it was in the Delano wines，caused those wines to be unmarketable．

Delano argues that Supreme's failure to follow minimum industry standards prevents it from recovering for the unmerchantable wine．The judge specifically ruled that Delano had failed to meet its burden of establishing such standards as a usage of trade applicable to Supreme．Even if Delano had met its burden，its argument would fail．A course of dealing between parties controls the interpretation of usage of trade．G．L．c．106，§ 1－205(4)．In this case，Supreme consistently followed the same procedure in processing Delano wine since 1968．This clearly established a course of dealing between Delano and Supreme．Any usage of trade followed in areas outside of Massachusetts cannot control this long-standing course of dealing between the parties．

Once Supreme initially accepted Delano wine it had the burden of establishing that there was a breach of the warranty of merchantability．Axion Corp．v．G．D．C．Leasing Corp．，359 Mass．474，479，269 N．E．2d 664(1971)．Supreme has met that burden．Supreme identified all the returned wine as Delano wine．Delano's chemist also found traces of Fresno mold in the samples“from the compartments of the tank cars in which Delano wine arrived ＊ ＊ 1072 in Boston and wine from the bottles returned by customers．”* 674 The wine in its returned state was neither merchantable nor fit for bottling or consumption．Only through extensive reprocessing could Supreme mitigate the loss from this wine．The course of dealing between the parties supports the conclusion that the finished wine shipped by Delano normally was ready for bottling and drinking．Although the Delano sweet wine could be bottled shortly thereafter，it could not be drunk．

Delano was required to anticipate the environment in which it was reasonable for its product to be used．Back v．Wickes Corp．， 375 Mass．633，640－641， 378 N．E．2d 964(1978)．It was reasonably foreseeable that the unchecked presence of Fresno mold would substantially impair the value of the wine．That result occurred．The Delano wine could not pass in the trade as finished wine without objection，was not fit for the ordinary purposes for which finished wine was used，and therefore，was unmerchantable．See G．L．c．106，§ 2－314．

Sufficiency of notice of the breach．

Delano contends that the notice given by Supreme's oral communications in 1973，and letter dated April 9， 1974，were，as matter of law，insufficient and untimely．We disagree．The sufficiency of notice must be determined in light of its purpose．One purpose of the notice requirement in G．L．c．106，§ 2－607，is to inform the seller of a breach and thereby allow for settlement through negotiation．See Nugent v．Popular Mkts．，Inc．， 353 Mass．45， 49， 228 N．E．2d 91(1967);J．White ＆ R．Summers，Uniform Commercial Code 421，422(2d ed．1980)．Following these principles encourages the parties to seek compromise and promotes good faith in commercial dealings．See United Cal．Bank v．Eastern Mountain Sports，Inc．， 546 F．Supp．945， 958(D．Mass．1982)，aff'dmem．， 705 F．2d 439(1st Cir．1983)．Notice is sufficient if it fulfils these purposes and allows the seller to infer that the buyer is asserting its legal rights．Lieberman v．W．M．Gulliksen Mfg．Co．， 332 Mass．439， 443，125 N．E．2d 396(1955)(interpreting a similar，prior provision in G．L．［Ter．Ed．］c．106，§ 38)．

Supreme's notice，in this case，was particularly suited to and did fulfill the goals of G．L．c．106，§ 2－607(3)(a)．The record indicates that Supreme made oral complaints to Delano．* 675 Supreme made repeated telephone calls complaining to Delano that all of its sweet wine was being returned．Supreme stopped buying wine from Delano during the spring of 1973．Delano's manager negotiated with Supreme's president．The judge found that renewed promises of assistance from Delano's manager induced Supreme to recommence purchasing from Delano．However，when the assistance was not forthcoming，and wine continued to go bad，Supreme withheld payment on the last invoice of December 20，1973．When oral communications proved fruitless， Supreme's assistant to the president wrote Delano's manager emphasizing the seriousness of the problem．In response，Delano sent an assistant winemaker to Supreme in an attempt to solve the problem．

This activity is consistent with the object which the notice under § 2－607 is intended to accomplish．Oral notice which indicates the nature of the problem and that this particular seller sold the goods in question is sufficient in most instances．The seller must be able to infer which sales are involved and that an identified buyer is asserting legal rights．Lieberman，supra．See Ford v．Barnard，Sumner ＆ Putnam Co．， 1 Mass．App．Ct．192，195，294 N．E．2d 467(1973)(where buyer failed to identify self，notice held insufficient)．The fact finder could have found that Supreme's notice to Delano met these requirements．

“ ［W］hether the notice requirement has been complied with is a question which is particularly within the province of the［fact finder］．”City Welding ＆Mfg．Co．v．Gidley-Eschenheimer Corp．，16 Mass．App．Ct．372，373，451 N．E．2d 734(1983)，quoting from Eastern Air Lines，Inc．v．McDonnell Douglas Corp．，532 F．2d 957，973(5th Cir．1976)．The adequacy and timeliness＊＊1073 of the notice depends on the reasonableness of the buyer's behavior in the circumstances．City Welding ＆ Mfg．Co．，supra．Supreme gave notice to Delano soon after the wine was returned by its customers．The judge was warranted in finding that Supreme's ongoing complaints to and negotiations with Delano were timely and sufficient notice．Id．at 374， 451 N．E．2d 734．

We have determined that Supreme's notice of the breach of the warranty of merchantability was timely and sufficient．In order to revoke properly its acceptance of the wine，Supreme was required to inform Delano that it did not wish to keep the goods．Connecticut Inc．Casting Corp．v．Made-Rite Tool Co．，382 Mass．603，608，416 N．E．2d 966(1981)．Furthermore，the defect in the wine must have substantially impaired the value of the wine to Supreme．Both requirements are met in this case．

The testimony of Supreme's assistant to the president indicates that he told Delano's manager that the wine was not good，could not be used，and that Delano should take the wine back．Delano's manager told this assistant to send them a sample．Supreme complied．

After a period in which oral complaints were made without results，Supreme wrote Delano emphasizing the seriousness of the problem．Delano，in response，sent an assistant winemaker in an attempt to solve the problem．After examining Supreme's procedures and making certain recommendations，this representative* 677 told Supreme to pasteurize and reprocess the spoiled wine．Supreme did so and then sold this wine at a reduced rate．Later，Supreme wrote Delano informing it of an estimate of Supreme's damages．Delano's written response indicated that it assumed that Supreme still had the wine to ship back to Delano for credit．However，Supreme had already sold this wine at a reduced rate as instructed by Delano's representative．

The defective “finished wine ”could not be sold without further processing．One-half of the unpaid shipment was comprised of sweet wine．Fresno mold caused the sweet wine to be defective．Where one-half of the unpaid shipment was of the sweet wine type found to be defective，its value to Supreme，therefore，was substantially impaired．This is especially so where Supreme had recommenced buying from Delano based on Delano's assertion that the problem would be resolved．The interaction between the parties indicates that Supreme informed Delano，and Delano understood，that Supreme did not wish to keep this wine．“［E］ffective revocation of acceptance may be accomplished by oral notice ．．．or by conduct which unequivocally manifests a desire to revoke the sale”judged in light of all of the circumstances．＊＊1074 JeffcoFibres，Inc．v．Dario Diesel Serv．，Inc．，13 Mass．App．Ct．1029，1030，433 N．E．2d 918(1982)．The facts exhibited in the record warrant a finding that Supreme revoked its acceptance of the wine．FN4 Where Supreme justifiably revoked its acceptance，Delano was not entitled to the contract price．See G．L．c．106，§ § 2－703，2－709(3)(seller can recover price only if buyer wrongfully rejects or revokes);Akron Brick ＆ Block Co．v．Moniz Eng'g Co．，365 Mass．92，95，310 N．E．2d 128(1974);11 S．Williston，Contracts § 1364B，at 356(3d ed．1968)．Therefore，the judge properly dismissed Delano's complaint．The judge did not abuse his discretion in awarding costs to * 678 Supreme，the prevailing party．See Creed v．Apog，377 Mass．522， 524－525， 386 N．E．2d 1273(1979)．

Calculation of damages，other than good will．

The calculation of damages other than good will may be summarized as follows:

a．8 000 cases of wine that Supreme proved as damaged at $ 13 per case，the price Supreme normally charged its customers．$ 104 000.00

b．Transportation cost for 5 000 cases returned by customers to Supreme as found by the judge．6 250.00

c．Supreme's direct cost for mitigation of damages by refiltering，pasteurizing，rebottling，recapping，relabeling，repackaging，and reselling the defective wine at Delano's request．25 207.25

d．Reasonable profit for mitigation process．(Supreme usually added $ 3 to its direct costs for rebottling without pasteurization．Therefore，the judge properly assessed this amount．

In construing Supreme's incidental and consequential damages，we note that remedies under the Uniform Commercial Code are to be administered liberally so as to put the aggrieved party in as good a position as if the other party had fully performed．G．L．c．106， § 1－106．Productora e Importadora de Papel，S．A．de C．V．v．Fleming，376 Mass．826，838，383 N．E．2d 1129(1978)．The consequential damages include any loss of prospective * 680 profits， Matsushita Elec．Corp．of America v．Sonus Corp．，362 Mass．246，264，284 N．E．2d 880(1972)，and incidental damages permit recovery of Supreme's reasonable expenses incurred in handling the defective goods．G．L．c．106，§ 2－715．See Uniform Commercial Code § 2－715，comment 1 1A U．L．A．446(1976);J．White ＆ R．Summers，Uniform Commercial Code § 10－3(2d ed．1980)．See also Bevel-Fold，Inc．v．Bose Corp．，9 Mass．App．Ct．576，584，402 N．E．2d 1104(1980)．Consequential damages are those that cannot be reasonably prevented and arise naturally from the breach，or which are reasonably contemplated by the parties．FN7 G．L．c．106，§ 2－715．See J．White ＆ R．Summers，supra at § 10－4．Calculation of damages，however，must not overcompensate the buyer．Id．

Delano argues that there is no basis in the record for the conclusion that it caused injury to Supreme's business reputation．The master found that the primary reason for Supreme's decline in sales after 1973 was the defective Delano wine．This finding was prima facie evidence of the causal connection between Delano's acts and the damage to Supreme's business reputation．At trial，Delano presented the testimony of several former Supreme customers＊＊1076 to rebut the evidence of a causal connection．Supreme presented testimony of its former officers to support the evidence that Delano caused the injury to Supreme's business reputation．This record is hardly one，as Delano argues，that is totally devoid of any basis for finding a causal connection between Delano's acts and Supreme's damages．Rather，it exhibits an instance where the judge was required to weigh the credibility of the evidence before him and to determine whether a causal connection existed．The judge's finding that Supreme had proved a causal connection between its loss of business reputation and Delano's breach is not clearly erroneous．

Delano contends that the record contains scant evidence supporting a valuation of Supreme's good will．However，it did not produce any direct evidence at trial before the judge which rebutted Supreme's evidence of the good will value．At trial，Supreme presented the testimony of an expert in business appraising．This expert had over eight years' experience as a business broker engaged in buying and selling businesses in and * 682 around Boston．In this connection he was required to appraise a business's value，including the value of its good will．The judge's acceptance of the expert testimony implies that he found this expert sufficiently qualified to render an opinion．Commonwealth v．Boyd， 367 Mass．169，183，326 N．E．2d 320(1975)．A finding that this expert possessed sufficient knowledge，skill，and experience to render an opinion was neither an abuse of discretion nor erroneous as matter of law．Id．See P．J．Liacos，Massachusetts Evidence 112(5th ed．1981)．

The expert valued the business at $ 593 700，including assets and good will．The assets were valued at $ 237 092．This valuation was based on the business records introduced in evidence and certain other facts．FN8 This was a sufficient basis for his opinion．Uberto v．Kaufman，348 Mass．171，173， 202 N．E．2d 822(1964)．Supreme's president and its treasurer testified that Supreme'svalue was $ 500 000．FN9

The judge found that Supreme's loss of good will attributable to Delano's breach was $ 100 000．He based this on the evidence in the record and an examination of valuation methods．He rejected Supreme's theories supporting its valuation as lacking factual grounding．In determining the value of Supreme's good will，the judge was not bound by the expert testimony．P．J．Liacos，supra at 117，citing Dodge v．Sawyer，288 Mass．402，408，193 N．E．15(1934)．

Delano argues that the trial judge relied on extraneous materials，not admitted at trial，in determining good will．Specifically，he discussed certain statistics from Business Week，indicating an increased consumption of wine and a growth in the wine industry．This reference occurred in a lengthy discussion * 683 of various methods used in valuing good will．This same discussion specifically refers to evidence introduced at trial which sufficiently supported a valuation of the lost good will．There is no clear indication to what degree，if any，the discussion of the extraneous material influenced the good will valuation．The judge found sufficient grounds to reduce the value from that given by Supreme．Where there was sufficient evidence＊＊1077 to warrant a valuation of lost good will and the causal connection of that loss，we will not upset this finding．It was not clearly erroneous and was based on the judge's weighing the credibility of the evidence before him．The weight given this evidence was then used in accepted formulations of good will to determine the damage．We do not require that such damages be proved with mathematical certainty．Productora e Importadora de Papel，S．A．de C．V．v．Fleming，376 Mass．826， 840， 383 N．E．2d 1129(1978)．The judge did not err in calculating the damages for good will．

Neither party has addressed the issue whether lost good will is a proper consequential damage under G．L．c．106，§ 2－715．This court has stated that prospective profits are recoverable in the appropriate case．Matsushita Elec．Corp．of America v．Sonus Corp．，362 Mass．246，264，284 N．E．2d 880(1972)．In examining whether good will is also recoverable，we note that Pennsylvania，in disallowing such recovery，based its decision on the interpretation of its prior law，which did not allow recovery for good will．Harry Rubin ＆ Sons v．Consolidated Pipe Co．of America， 396 Pa．506， 153 A．2d 472(1959)．Other cases in which recovery for good will has been denied are based on the speculative nature of damages in the particular case or on a failure of proof．96 A．L．R．3d § 18 ［b］，at 396(1979)．Cf．96 A．L．R．3d § 18 ［a］，at 395(1979)(loss of good will held recoverable)．Under our law as it was before the enactment of the Uniform Commercial Code，“［l］oss of good will［was］recognized as an element of damages flowing from the use of unfit material received from one who warranted it to be fit．”Royal Paper Box Co．v．Munro ＆ Church Co．， 284 Mass．446， 452， 188 N．E．223(1933)(interpreting G．L．［Ter．Ed．］c．106，§ 17 ［1］)．Where a seller of goods reasonably knows that substantially impaired goods * 684 provided for resale could affect continued operations and established good will，the buyer's loss of good will caused by the seller's breach is properly recoverable as consequential damages unless the loss could have been prevented by cover or otherwise．G．L．c．106，§ 2－715(2)(a)．This is not a harsh result as the seller may contractually limit this remedy．Uniform Commercial Code § 2－715，comment 3 1A U．L．A．446(1976)．In this case，Supreme's loss of good will was found to be a direct consequence of Delano's breach．Once sufficiently ascertained，the award of damages for lost good will was properly allowed．

思考题

1.简述本案主要事实

2.Delano公司抗辩的理由是什么?

3.法官对于Delano公司抗辩的观点是什么?

4.Delano公司是否违反了一般商销性担保?

4.Supreme公司对于违反担保的索赔是否满足了法律的要求?

5.Supreme公司是否可以取消接受?

6.Supreme公司是否可以要求商誉损失?

案例21

Rogath v.Werner E.R.Siebenmann

McLAUGHLIN，Circuit Judge:

Background

This case revolves around a painting，entitled“Self Portrait， ”supposedly painted in 1972 by a well-known English artist，Francis Bacon.

In July 1993，defendant Werner Siebenmann sold the Painting to plaintiff David * 263 Rogath for $ 570 000.In the Bill of Sale，Siebenmann described the provenance of the Painting and warranted that he was the sole owner of the Painting，that it was authentic，and that he was not aware of any challenge to its authenticity.

Problems arose three months later when Rogath sold the Painting to Acquavella Contemporary Art，Inc.，in New York，for $ 950 000.Acquavella learned of a challenge to the Painting's authenticity and，on November 1，1993，requested that Rogath refund the $ 950 000 and take back the Painting.Rogath did so，and then sued Siebenmann in the Southern District of New York(Batts，J.)for breach of contract，breach of warranty and fraud.

Rogath moved for partial summary judgment on the breach of warranty claims，and the district court granted his motion.See Rogath v.Siebenmann，941 F.Supp.416，422－24(S.D.N.Y.1996)．The court concluded that(1)Siebenmann was unsure of the provenance of the Painting when he sold it to Rogath;(2)he was not the sole owner of the Painting;and(3)when he sold the Painting to Rogath he already knew of a challenge to the Painting's authenticity by the Marlborough Fine Art Gallery in London.See id.The court awarded Rogath $ 950 000 in damages，the price at which he had sold it to Acquavella.See id.at 424－25.The court dismissed，sua sponte，Rogath's remaining claims for fraud and breach of contract“in light of the full recovery on the warranties granted herein.”Id.at 425.Finally，a few days later，the court denied Rogath's motion to attach the money that Siebenmann had remaining from the proceeds of the initial sale to Rogath.

Siebenmann appeals the grant of partial summary judgment.Rogath crossappeals the denial of his motion for attachment and the dismissal of his fraud and breach of contract claims.

Discussion

Siebenmann concedes that his promises and representations set forth in the Bill of Sale constitute warranties under New York law.He claims，however，that Rogath was fully aware when he bought the Painting that questions of authenticity and provenance had already been raised regarding the Painting.He maintains that，under New York law，Rogath therefore cannot rest claims for breach of warranty on the representations made in the Bill of Sale.

We review de novo the district court's disposition of Rogath's motion for partial summary judgment.See LaFond v.General Physics Servs.Corp.，50 F.3d 165，171(2d Cir.1995)．The parties agree that New York law applies.

A.Breach of Warranty under New York Law

The Bill of Sale provides:

In order to induce David Rogath to make the purchase，Seller ...makes the following warranties，representations and covenants to and with the Buyer.

1.That the Seller is the sole and absolute owner of the painting and has full right and authority to sell and transfer same;having acquired title as described in a copy of the Statement of Provenance signed by Seller annexed hereto and incorporated herein;［and］that the Seller has no knowledge of any challenge to Seller's title and authenticity of the Painting....

Because the Bill of Sale was a contract for the sale of goods，Rogath's breach of warranty claims are governed by Article Two of the Uniform Commercial Code(“U.C.C.”)．See N.Y.U.C.C.§ 2－102(McKinney 1993);Foxley v.Sotheby's Inc.， 893F.Supp.1224， 1232－33(S.D.N.Y.1995)．Section 2－313 of the U.C.C.provides that “any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”N.Y.U.C.C.§ 2－313(1)(b)(McKinney 1993)．

Whether the “basis of the bargain”requirement implies that the buyer must rely on the seller's statements to recover and what the nature of that reliance requirement is are unsettled questions.See Note ，“Express Warranties under the Uniform Commercial Code:Is There a Reliance Requirement?”66 N.Y.U.L.Rev.468，469(1991 );see also Annotation ，“Purchaser's Disbelief * 264 in，or Nonreliance upon，Express Warranties Made by Seller in Contract for Sale of Business as Precluding Action for Breach of Express Warranties， ”7 A.L.R.5th 841(1992 )．Not surprisingly，this same confusion haunted the New York courts for a time.See Ainger v.Michigan Gen.Corp.， 632 F.2d 1025，1026 n.1(2d Cir.1980);CPC Int'l，Inc.v.McKessonCorp.， 134Misc.2d834， 513N.Y.S.2d319， 322(Sup.Ct.1987)．

Some courts reasoned that the buyer must have relied upon the accuracy of the seller's affirmations or promises in order to recover.Other courts paid lip service to a“reliance”requirement，but found that the requirement was met if the buyer relied on the seller's promise as part of“the basis of the bargain”in entering into the contract;the buyer need not show that he relied on the truthfulness of the warranties.See，e.g.，Ainger v.Michigan Gen.Corp.，476 F.Supp.1209，1224－27(S.D.N.Y.1979)(interpreting，in part，§ 2－313)，aff'd on other grounds， 632 F.2d 1025(2d Cir.1980)．

Finally，some courts reasoned that there is a“reliance”requirement only when there is a dispute as to whether a warranty was in fact given by the seller.These courts concluded that no reliance of any kind is required “where the existence of an express warranty in a contract is conceded by both parties.”CPC Int'l， 513 N.Y.S.2d at 322;see Ainger， 476 F.Supp.at 1226－27.In these cases，the buyer need establish only a breach of the warranty.

In 1990 New York's Court of Appeals dispelled much of the confusion when it squarely adopted the“basis of the bargain”description of the reliance required to recover for breach of an express warranty.In CBS Inc.v.Ziff-Davis Publishing Co.，75 N.Y.2d 496，554 N.Y.S.2d 449，553 N.E.2d 997(1990)，the court concluded that “this view of “reliance”—i.e.，as requiring no more than reliance on the express warranty as being a part of the bargain between the parties—reflects the prevailing perception of an action for breach of express warranty as one that is no longer grounded in tort，but essentially in contract.”Id.at 452，553 N.E.2d at 1001.The court reasoned that“the critical question is not whether the buyer believed in the truth of the warranted information ...but whether［he］believed［he］was purchasing the ［seller's］promise［as to its truth］．”Id.at 452－53，553 N.E.2d at 1000－001(quotations omitted and some insertions altered)．

CBS was not decided on the basis of the U.C.C.，probably because the sale of the magazine business at issue did not constitute the sale of goods.See generally 7 A.L.R.5th at 846－47;Annotation ，“What Constitutes‘Goods’within the Scope of U.C.C.Article 2， ”4 A.L.R.4th 912，921－24(1981)．Nevertheless，the court relied heavily on UCC authorities，see CBS，554 N.Y.S.2d 449，553 N.E.2d at 1000－001，expressly noting that “analogy to the Uniform Commercial Code is‘instructive’.”.

In 1992，in a case also involving the sale of a business，we followed the New York Court of Appeals and delineated fine factual distinctions in the law of warranties:a court must evaluate both the extent and the source of the buyer's knowledge about the truth of what the seller is warranting.“Where a buyer closes on a contract in the full knowledge and acceptance of facts disclosed by the seller which would constitute a breach of warranty under the terms of the contract，the buyer should be foreclosed from later asserting the breach.In that situation，unless the buyer expressly preserves his rights under the warranties ...，we think the buyer has waived the breach.”Galli v.Metz，973 F.2d 145，151(2d Cir.1992)(emphasis added);see In re Chateaugay Corp.，155 B.R.636，650－51(Bankr.S.D.N.Y.1993)，aff'd，108 F.3d 1369(2d Cir.1997)．The buyer may preserve his rights by expressly stating that disputes regarding the accuracy of the seller's warranties are unresolved，and that by signing * 265 the agreement the buyer does not waive any rights to enforce the terms of the agreement.See Galli， 973 F.2d at 150.

On the other hand， if the seller is not the source of the buyer's knowledge，e.g.， if it is merely“common knowledge”that the facts warranted are false， or the buyer has been informed of the falsity of the facts by some third party，the buyer may prevail in his claim for breach of warranty.In these cases，it is not unrealistic to assume that the buyer purchased the seller's warranty “as insurance against any future claims， ”and that is why he insisted on the inclusion of the warranties in the bill of sale.

In short， where the seller discloses up front the inaccuracy of certain of his warranties，it cannot be said that the buyer—absent the express preservation of his rights—believed he was purchasing the seller's promise as to the truth of the warranties.Accordingly，what the buyer knew and，most importantly，whether he got that knowledge from the seller are the critical questions.

1.What Siebenmann Knew

Here，as the district court pointed out，Siebenmann，the seller，produced no evidence to contradict Rogath's evidence that Siebenmann knew of the cloud that hung over the Painting's authenticity before he sold it to Rogath.Siebenmann admits that he was told that the Marlborough Gallery was troubled by certain peculiarities of the Painting—including shiny black paint(as opposed to the matte black that Bacon apparently preferred)and the use of pink paint(which Bacon evidently did not use)—that suggested that Bacon was not the painter.

Siebenmann also admits that Julian Barran，a London art dealer，had earlier refused to buy the Painting because of doubts harbored by the Marlborough Gallery.Moreover，there was uncontroverted evidence that，on a prior occasion，Siebenmann's attempted sale of the Painting to a client of Robert Peter Miller， the owner of an art gallery in New York， was aborted when(1)Miller learned that the Marlborough had concerns about the Painting's authenticity，and(2)David Sylvester，a British art critic，advised Miller not to proceed with the purchase because of the Marlborough objection and because Sylvester himself was not sure of the authenticity of the Painting.

Finally，Siebenmann does not deny that in June 1993 he received a fax from Anita Goldstein，an art dealer in Zurich，Switzerland，stating that “everybody is afraid of the authenticity”of the Painting.

2.What Siebenmann Told Rogath:

In an affidavit in opposition to Rogath's motion for partial summary judgment，Siebenmann stated that“I spoke directly with David Rogath about the controversy created by the Marlborough Gallery towards this painting.”He also said that，in a phone conversation with Rogath on July 13，1993，“I specifically mentioned Marlborough Gallery and the ‘problems’ or the‘controversy’that it had produced for this painting....Mr.Rogath brushed aside the Marlborough Gallery controversy.He told me he had experienced difficulties with this particular gallery in the past and did not consider them to be especially reputable.”In his deposition，Siebenmann added that he told Rogath on the phone“that I had problems with the Marlborough Gallery.”

Siebenmann also filed an affidavit from Ronald Alley，the curator of the Tate Gallery in London，England，and the author of a survey of Bacon's work as well as several other writings about Bacon.Alley stated:

I was phoned by Mr David Rogath，hitherto unknown to me，who said that he was thinking of buying the painting and asked whether it was correct that I had seen it and thought it to be authentic.My reply，to the best of my recollection，can be summarized as follows :“It is a picture which * 266 did not pass through Marlborough Fine Art and is said to have a provenance which sounds quite plausible but is more or less impossible to check.Both Ms Beston of Marlborough Fine Art and David Sylvester say they don't think it is by Bacon，but Sylvester knows it only from a photograph.I flew to Geneva for the day to look at it in a warehouse and felt convinced it was genuine.”

For his part，Rogath denied that he was aware of any challenges to the authenticity or provenance of the Painting before entering into the Bill of Sale.He stated in his affidavit:

During our telephone conversation，Mr.Siebenmann did not tell me that the Marlborough Gallery had“questioned”or“reserved judgment”about the Painting，or had caused any “problems”or “controversy”concerning the Painting.He said nothing at all like that during the conversation.Neither did Mr.Alley，in our subsequent conversation，refer to any such matters.He certainly did not tell me that Ms.Beston and Mr.Sylvester“don't think it is by Bacon.”In fact，I spoke with Mr.Alley after the inauthenticity of the Painting had become known to me....Had either Mr.Siebenmann or Mr.Alley hinted to me that the Painting was of questioned authenticity，it would have been a “red flag”for me，as I had no desire to spend some $ 600 000 dollars to purchase a painting the authenticity of which was in dispute....

Here，the Bill of Sale states that the warranties induced Rogath to buy the Painting，but Rogath did not“expressly preserve his rights”under the Bill of Sale，as required by Galli.See 973 F.2d at 150.Accordingly，exactly what Siebenmann told Rogath is clearly crucial.See Galli，973 F.2d at 151;Chateaugay， 155 B.R.at 650－51.On the other hand，what Alley may have told Rogath about the authenticity and provenance of the Painting is immaterial.See Galli， 973 F.2d at 151;Ziff-Davis， 554 N.Y.S.2d 449，553 N.E.2d at 1001－002.Only if the seller， Siebenmann himself， informed Rogath of doubts about the provenance or challenges to authenticity will Rogath be deemed to have waived any claims for breach of warranty arising from the written representations appearing in the Bill of Sale.See Galli，973 F.2d at 151;Chateaugay， 155 B.R.at 650－51.

As Rogath emphasizes，Siebenmann nowhere specifically alleges that he informed Rogath of his doubts about the authenticity and provenance of the Painting.He merely alluded to the “controversy”or “problems”with the Marlborough Gallery.Still，Siebenmann's testimony，however ambiguous，may justify the inference that Rogath knew more than he now claims to have known when he entered into the Bill of Sale.

At the very least，there is indisputable ambiguity in the affidavits about the pivotal exchange between Rogath and Siebenmann.We are satisfied that genuine issues of fact persist.In this posture，we must draw all reasonable inferences in Siebenmann's favor.See LaFond， 50 F.3d at 171.Accordingly，as regards the Marlborough challenge，summary judgment on Rogath's claims for breach of the warranties of provenance and no challenges to authenticity is inappropriate.Cf.Dotson v.City of Indianola， Ms.， 739 F.2d 1022，1025－26(5thCir.1984 );Waldiev.Schlesinger， 509F.2d 508， 510(D.C.Cir.1974);Union Ins.Soc'y of Canton，Ltd.v.William Gluckin ＆Co.， 353 F.2d 946，953(2d Cir.1965)．

The order granting Rogath's motion for partial summary judgment is vacated，and the case is remanded to the district court for disposition not inconsistent with this opinion.

思考题

1.简述本案的基本事实。

2.卖方担保的内容是什么?

3.Siebenmann的抗辩理由是什么?

4.如何构成“basis of bargain”?

5.以前法院的观点是什么?

6.将法律原则适用于本案的结果是什么?

案例22

Step-Saver Data Systems，Inc.v.

Wyse Technology and

Software Link，Inc.

Oct.15， 1990.

RAYMOND J.BRODERICK，District Judge.

Implied Warranty of Merchantability

Step-Saver alleges error in the Court's refusal to charge the jury on the implied warranty of merchantability.Trans.of Tr.，July 9，1990，at 117.Step-Saver failed to produce any evidence that the implied warranty of merchantability was violated.

In Step-Saver's request for the Court to charge the jury on the implied warranty of merchantability，it appeared that there was a failure on Step-Saver's part to differentiate between the warranty of merchantability and the warranty of fitness for a particular purpose.As stated in White and Summers，Uniform Commercial Code，§ 9－9，p.357－58(2d ed.1980)，

Those unfamiliar with the differences between the warranty of merchantability(fitness for the ordinary purposes for which such goods are used)and the warranty of fitness for a particular purpose often confuse the two;one can find many opinions in which the judge used the terms “merchantability”and“fitness for a particular purpose”interchangeably.Such confusion under the Code is inexcusable.Sections 2－314 and 2－315 make plain that the warranty of fitness for a particular purpose is narrower，more specific，and more precise....

Note the conditions that are not required by the implied warranty of merchantability but that must be present if a plaintiff is to recover on the implied warranty of fitness for a particular purpose:

(1)The seller must have reason to know the buyer's particular purpose.

(2)The seller must have reason to know that the buyer is relying on the seller's skill or judgement to furnish appropriate goods.

* 191(3)The buyer must，in fact，rely upon the seller's skill or judgement.

Section 2－314(2)of the Uniform Commercial Code states that to be merchantable，goods must be at least such as

(a)pass without objection in the trade under the contract description;and

(b)in the case of fungible goods，are of fair and average quality within the description;and

(c)are fit for the ordinary purposes for which such goods are used;and

(d)run，within the variations permitted by the agreement，of even kind，quality and quantity within each unit and among all units involved;and

(e)are adequately contained，packaged，and labeled as the agreement may require;and

(f)conform to the promises or affirmations of fact made on the container or label if any.

U.C.C.§ 2－314(2)．

The warranty of merchantability does not require that the goods be “outstanding or superior.”They need only be “of reasonable quality within expected variations and for the ordinary purposes for which they are used.”Anderson， 3 Uniform Commercial Code，§ 2－314:29 at 136;see also Sessa v.Riegle，427 F.Supp.760，769(E.D.Pa.1977 )， affirmed without opinion， 568 F.2d 770(3d Cir.1978)．Acceptance in the trade，in addition to being an express requirement for merchantability under the Uniform Commercial Code， has long been a reliable barometer for determining whether a particular product is merchantable.Merchantability “includes as an element the warranty that the goods will pass in the trade without objection under the contract description.”Anderson，§ 2－314:31 at 138.

Step-Saver was thus obliged at trial to demonstrate not only the existence of the warranty(which is implied in virtually every transaction)，but also the fact that the warranty was breached and that the breach was the proximate cause of the loss sustained by the buyer.Step-Saver put forth no evidence as to any defect in packaging or unusual variations in quality，much less any evidence that the Wyse-60 terminals would not be acceptable as computer terminals in the trade.Wyse introduced uncontroverted evidence that over one million Wyse-60 terminals have been sold since their introduction in April， 1986.The Wyse-60 terminal has exceeded all other terminals in its class in sales.Furthermore，before deciding on the configuration of the Step-Saver multi-user systems，Step-Saver put the Wyse-60 through a two part testing program.Step-Saver employees conducted comparison tests of the Wyse-60 terminal and at least two other terminals whose performance was found to be inferior to that of the Wyse-60.Step-Saver's second stage of testing was the“bench-testing”of individual terminals and systems prior to installation at customer locations，again with no indication of problems.The only defect alleged was incompatibility with certain software programs selected by Step-Saver， including Multi-Link Advanced， Benchmark and Word Perfect.No evidence was presented to suggest that compatibility with those programs was a criterion of merchantability according to the usage of the computer terminal trade.There were hundreds of other software programs used with such terminals.Thus，the evidence clearly established that the Wyse terminals met or exceeded the ordinary standards of the trade at the time of their installation at customer locations by Step-Saver personnel.The evidence in this case clearly supported the Court's ruling that Step-Saver failed to present evidence of a breach of the implied warranty of merchantability.

B.Fitness for a Particular Purpose

Step-Saver further alleges that the Court erred in instructing the jury that in order to find liability for a violation of the implied warranty of fitness for a particular purpose the jury must find that Wyse “was aware of Step-Saver's specific applications ”of the Wyse-60 terminals.

This allegation is a misstatement of the charge given by the Court.The Court charged the jury as follows:

In order to prove the implied warranty of fitness，Step-Saver must prove by a preponderance of the evidence，that Wyse，at the time of the sale to Step-Saver，had reason to know of the particular purpose for which the Wyse-60 terminals were being purchased by Step-Saver and that Step-Saver relied on Wyse's skill and judgment to select or furnish suitable terminals.

The Court's charge was correct.Furthermore，the interrogatory to which the jury answered“NO”reads:

Has Step-Saver proved by a preponderance of evidence that defendant Wyse Technology at the time of the sale to Step-Saver had reason to know of the particular purpose for which the Wyse-60 terminals were purchased and that Step-Saver relied on Wyse's skill or judgment，creating an implied warranty of fitness，and that the implied warranty of fitness was breached and that the breach was a proximate cause of damage to Step-Saver?

思考题

1.商销性担保和符合特定用途担保的区别是什么?

2.证明违反商销性担保的因素是什么?

3.证明违反特定用途担保的因素是什么?

4.法官各自考虑了哪些事实?