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The State of California - State and Consumer Services Agency
LEGAL AFFAIRS
400 R Street, Suite 3090
Sacramento, CA 95814-6200
Legal Guide W-6
CONSUMER PRODUCT WARRANTIES
Full and Limited Warranties
Express and Implied Warranties
Disclosures, Disclaimers, Remedies
September 1990
(Revised, September 1994)
A product you've purchased or leased for personal, family or household
purposes doesn't work the way it should. You can try kicking it soundly,
yelling at it forcefully, pretending you don't notice its failings ... or
even better, you can read its written warranty.
The written warranty spells out the warrantor's promises to fix or replace
an item or part if it doesn't work properly. The law requires that written
warranties be worded so as not to mislead a reasonable, average consumer
about the protections the warranty provides. Warranties must be written
in plain and readily understood language and must contain a good deal of
important information.
The law helps you by requiring the warrantor to clearly and conspicuously
state all the information that you should consider. Nevertheless, both good
and bad warranties still exist, so you should shop around and compare written
warranties carefully.
YOU CAN LOOK AT THEM WHILE YOU SHOP
The first time to read your written warranty is before you buy an item.
Warranties on products costing more than $15 must be made available for
you to read before you buy. Sellers can do this by displaying the warranty's
text on or near the product, or by maintaining a binder containing copies
of warranties for all the products sold. Also, be sure you actually receive
the written warranty. Some retailers who sell imported products at low cost
do not provide the written warranties that normally accompany the products
they sell.
IT WARRANTS YOUR ATTENTION
Almost all warranties will fail to include some assurances and protections
that you would want to have. In selecting a product, you should look upon
the warranty as one of its many characteristics -- like color, style, size
or weight. The following information must be contained in the warranty:
- The warrantor's name and mailing address.
- Who is protected by the warranty, including any limitations (for example,
a warranty protecting only the first owner).
- Precisely what parts, components, characteristics or properties the
warranty covers, and what it excludes.
- What items or services the warranty will pay for; and those for which
you must pay.
- When the warranty term begins (if other than the date of purchase).
- The warranty's duration (measured, for example, by time or mileage).
- Whom to contact to have warranty service performed (including names,
addresses and telephone numbers).
- Step-by-step instructions to follow to obtain service.
- Any expenses you may be required to pay.
Virtually all written warranties include a promise to make any needed
repairs. Rarely, however, does a warranty include a promise to pay for repairs
or any other losses (although the general law of sales and product liability
may confer such a right).
Some written warranties offer very little protection at all, and are
only merchandising devices involving no real benefit to you. While the law
prohibits a warrantor from making a "deceptive warranty," your
best protection is to read and understand the warranty before you buy.
The written warranty must state any ways in which the warrantor seeks
to limit your legal rights. It also must describe any limitation the warrantor
has sought to place on your legal remedies. Most warranties, for instance,
state that the warrantor is only responsible for repairs, and not for any
related losses that may result from the product's defect.
The warranty must disclose information to help you obtain redress if
the warrantor fails to honor its warranty. This information may include
the availability of an arbitration program, and a statement that while the
warranty gives you specific legal rights, you have other rights too.
You do not need to return an owner registration card, even if the warranty
says you must. However, you always should keep a receipt showing the date
of purchase to prove when the warranty period began. And it may be in your
interest to register with the manufacturer even if registration is not legally
required.
FULL WARRANTIES LIMITED WARRANTIES
The written warranty will be labeled either "full warranty"
or "limited warranty." A full warranty must also state its duration;
e.g., "Full Five-Year Warranty."
Most written warranties are limited warranties in which the warrantor
has a great deal of flexibility in writing warranty terms. For example,
a limited warranty may cover parts, and not labor. Additionally, it may
charge you for handling fees.
A product can carry more than one written warranty. The product can have
a fully warranty on one part of it and a limited warranty on the rest.
Always remember: a limited warranty means careful, not everything's covered."
RIGHTS UNDER FULL WARRANTIES
If the product has a full warranty, federal law gives you certain minimum
rights and remedies. The warrantor must rectify any defect, malfunction,
or failure to measure up to the warranty within a reasonable time and
without charge after receiving notice of a defect or malfunction.
If a defect, malfunction or failure to conform with the warranty occurs
during the warranty period, the warrantor must either repair the product,
replace it with another product that is identical or reasonably equivalent,
or refund your money.
If the warrantor chooses to replace the defective product, it must pay
all of the costs of removing and reinstalling a product which is
useful only when installed (e.g., flooring). If the warrantor replaces a
component part, the replacement and installation must be provided free of
charge.
In general, a full warranty gives you a right to have an improperly functioning
product repaired or replaced. While the warrantor may offer you a refund,
you need not accept it unless repair is not feasible or cannot be made within
a reasonable time, and the warrantor cannot provide a satisfactory replacement.
On the other hand, a full warranty does not give you the right to force
the warrantor to give you a refund, so long as the warrantor is willing
to provide a defect-free replacement.
If the warrantor can neither repair nor replace a defective product,
the warrantor's only remaining option is to refund its purchase price. If
the product is fundamentally defective -- i.e., it cannot be repaired after
a reasonable number of attempts -- you have the choice of either a replacement
or refund. You are not required to tolerate endless repairs. If you want
a refund, the warrantor can require that you first pay off any loan on the
item (except one made by the seller) before refunding the price. The amount
refunded is the actual purchase price. If the warranty is a full warranty,
depreciation cannot be deducted.
If you have a full warranty, you also have a right to be reimbursed for
certain kinds of incidental expenses, but only if the expenses were incurred
because the warrantor did not act promptly, or imposed an unreasonable (unfair
or unnecessarily burdensome) requirement as a condition of providing a remedy.
The warrantor is not responsible for the defects or failures of a product
cause by damage following the sale, or by unreasonable use, such as failure
to provide reasonable and necessary maintenance. It is important, therefore,
to read and carefully follow the warrantor's instructions on installation,
operation and maintenance. If the warrantor claims that you or someone else
has damaged, abused or misused the product, the warrantor should be asked
to state in what ways it believes that the damage was done. The warrantor
has the burden of proving any abuse, misuse or other post-sale damage.
Under federal law, you are entitled to all of the above rights, even
if they are not specifically mentioned in the written warranty.
SERVICING AND REPAIR PROCEDURES
A California law, the Song-Beverly Consumer Warranty Act, states that
a manufacturer who furnishes a written warranty on a consumer product must
provide service and repair facilities in California reasonably close to
all areas where the product is sold. These facilities must be set up to
carry out the terms of the warranty.
This law states that a manufacturer can delegate its responsibilities
to retailers or to independent repair or service facilities. To help ensure
that the repairs are performed competently, the manufacturer must pay the
retailer or repair facility the actual and reasonable cost of service, including
any parts and any reasonable cost of transporting the goods or parts, plus
a reasonable profit.
The manufacturer, or its representative, must begin repairs within a
reasonable time after you return the defective product for repairs. The
repairs must be completed within 30 days. During the period while a product
sold for $50 or more is being repaired, the written warranty's duration
is automatically extended.
If the manufacturer or its representative is unable to service or repair
the product to conform to its written warranty after a reasonable number
of attempts, you have the right to receive a replacement of the product,
or a refund of the product's purchase price, less depreciation resulting
from your use before the defect was discovered.
The California rules on performance of service and repair apply both
to "full warranties" and "limited warranties." If the
manufacturer has not established service and repair facilities in California
sufficient to carry out its warranty, you have the right to return the defective
product for repair to the original seller, who must repair the defective
product, direct you to an independent repair facility that is willing to
honor the warranty, replace the product, or refund its price less depreciation.
You also can return the defective product to any other retailer who sells
similar goods from the same manufacturer for replacement or repair. A retailer
who is not the original seller probably can decline service.
If the original seller (or a retailer of similar products of the same
manufacturer) performs repairs, the manufacturer must pay the retailer the
actual and reasonable cost of the service, including a reasonable profit.
If the product is replaced, the manufacturer is required to pay the retailer
the actual cost of the replaced product plus any transportation costs and
a reasonable handling charge. If the retailer refunds the price, the manufacturer
must pay the retailer the amount refunded, plus a reasonable handling charge.
If there is a delay in making repairs because of conditions beyond the
control of the manufacturer or its representative, the 30-day period for
completing the repairs is extended, but only to the extent justified.
(A failure to stock parts without a satisfactory reason does not
extend the 30-day period.) The 30-day period is also extended if you agree
in writing.
In several circumstances, the manufacturer or its representative must
provide warranty service at your home, or pick up a malfunctioning product
and take it to its own facility without additional charges for transportation.
The circumstances occur when the product's size and weight, method of attachment
or installation, or the defect's nature, make it impossible for you to return
the product. If the manufacturer has not set up sufficient repair facilities
in California, the retail seller has these obligations.
In the case of a used product sold with the retail seller's or
distributor's written warranty, the retail seller or distributor (not the
manufacturer) must honor the warranty's repair provisions. Sometimes the
warranty on a new or used product is given by a company other than the manufacturer
or seller. In those instances, the company giving the warranty must perform
the service, though the seller (and the manufacturer if the product is new)
may be subject to certain implied warranties.
The warrantor's duty to repair does not extend to defects caused by unauthorized
or unreasonable use, including failure to provide reasonable and necessary
maintenance. A warrantor who claims that a defect was caused by your unauthorized
or unreasonable use or failure to maintain should be asked to describe exactly
how the product was neglected or abused. In court, a warrantor who asserts
that you have abused the product has the burden of proof.
SERVICE CONTRACTS
Many manufacturers and retailers offer service contracts to supplement
or extend the length of a written warranty if you pay an extra yearly or
monthly charge. Routine maintenance, usually excluded from written warranties,
is sometimes included in service contracts.
Essentially, your periodic payments average out to the approximate average
repair cost for all purchasers of the product. The cost varies, depending
on the type of product the contract covers, and the scope of the service
promised.
With a new product, you usually receive a written warranty as well as
certain implied warranties. So, compare the warranty and service contract
carefully to see how much the service contract really adds. The service
contract cannot duplicate the items or costs covered by the express written
warranty, and may not run concurrently with the express warranty unless
it provides coverage or relief not provided by the express warranty.
The law requires that the terms of both warranties and service contracts
be spelled out in plain language. When considering the purchase of a product,
also compare warranties and service contracts, as well as the total cost
of a product and of its service contracts during the entire period you expect
to use it.
Like the coverage provided by written warranties, the coverage provided
by service contracts may be extensive or limited. It all depends on the
language of the service contract, which you need to read and understand
before you can decide whether the protections are worth the price you will
be paying.
The law helps you decide whether the service contract is worth the price
by giving you at least 30 days after you receive the contract to
decide whether you really want it, and if you do not, to cancel your purchase
of the contract. To learn about your right to cancel such a contract, carefully
read the contract or the disclosures provided with it.
EXPRESS WARRANTIES
There are two basic kinds of warranties: express and implied. Express
warranties, usually written, consist of the warranty document and certain
other statements made by or on behalf of the manufacturer or seller. (As
discussed above, an express written warranty may be either a full warranty
or a limited warranty.) Implied warranties, in contrast to express
warranties, are created by law, and depend less on what the manufacturer
or seller has expressly promised or said.
Advertisements, sales brochures, descriptive labels, instruction manuals,
and other written statements and promises that accompany the sale will usually
create express warranties that are enforceable against the party actually
making them. Oral warranties are much more difficult to prove and, for that
reason, may turn out to be unenforceable.
To be enforceable as an express warranty, a statement about a product
must relate to the particular sale. While some manufacturers and sellers
still argue that no express warranties were made except those that appear
in the written warranty, courts usually reject arguments that contradict
what the parties actually said or promised if your evidence is persuasive.
IMPLIED WARRANTIES
California law supplies a special unwritten warranty, called the "implied
warranty of merchantability" (sometimes called the "implied warranty
of general fitness") in almost every sale in which a written warranty
is given, and in most other sales, too. The implied warranty of general
fitness is basically an implied-by-law promise by the manufacturer and the
retail seller that the product is fit for its ordinary purposes.
Under the California Song-Beverly Consumer Warranty Act, all new
consumer products that are sold at retail with an express written warranty
also have an implied warranty of general fitness. This means that the manufacturer
and the retail seller must furnish a product that is fit for its ordinary
purposes. A toaster must be able to toast bread, a clothes dryer must be
able to dry clothes, an automobile must provide passenger transportation.
The written warranty may only cover certain parts of the product
and certain kinds of defects, and its protections may be limited to certain
periods of time. The implied warranty, however, applies to the whole
product and to all material defects. In sales where the written warranty
offers you only limited assurances, the implied warranty of general fitness
may fill a needed gap and give you an assurance that the product as a whole
is fit for its intended purposes.
The duration of the implied warranty depends on the kind of product and
the circumstance of the sale. If the product is a new consumer product that
is accompanied by a written warranty, the implied warranty's duration
is at least the same as the written warranty's duration, but generally not
less than 60 days nor more than one year. Where there is an implied warranty
but no written warranty, the implied warranty lasts a year. During the period
while a product that is sold for $50 or more is being repaired, the duration
of the implied warranty is extended.
If a defect was present at the time of sale but is not discovered until
much later, an implied warranty of general fitness may be present, but it
may be necessary to consult a lawyer to enforce it. Note that the implied
warranty of general fitness may provide a remedy where your written warranty
has expired.
The implied warranty of general fitness does not apply to food or other
products intended for consumption by individuals, or for use by individuals
for personal care or in the performance of household services. If, however,
the product or its instructions for use are defective and personal injuries
have resulted, California's general products liability law may provide a
remedy. In that event, an attorney should be consulted.
The implied warranty of general fitness also does not apply to the sale
of wearing apparel, including under and outer garments, shoes and accessories
made of woven material, yarn, fiber, leather or similar fabrics. If, however,
the clothing is accompanied by a written warranty, any clothing that does
not conform with the written warranty can be resumed to the manufacturer
(or the retailer if the warranty so states) within the time specified on
the warranty (usually 30 days).
While the implied warranties are created by law, the duties arising from
a manufacturer's written warranty are those which the manufacturer has agreed
to assume. You will find most manufacturers ready, willing and able to honor
the duties spelled out in their written warranties. Since California law
states that warrantors must establish facilities and procedures to carry
out their written warranties, you should always first attempt to follow
the steps outlined in the written warranty. If the written warranty does
not provide adequate protection or is deceptive, or if the warrantor or
its representatives fail to carry out its provisions, you can then look
to an implied warranty for help, but in those instances you may need to
go to court (e.g., small claims court) to enforce your rights.
A product that is perfectly fit for its general purposes may not meet
your particular needs. For instance, a camper shell that is suitable
for most trucks may not fit the elongated bed on your truck. The glasses
you purchased may fit someone else, but not you. If, in making the purchase,
you sought and received help from the seller in determining what product
would meet your particular needs, you may have rights against the seller
(or other party on whose skill and judgment you relied) if the product is
not suitable. In those instances, you have another unwritten warranty called
the "implied warranty of fitness for a particular purpose."
DISCLAIMER OF IMPLIED WARRANTIES
The Song-Beverly Act states that a manufacturer, distributor, or retailer
who makes a written warranty may not disclaim any implied warranty
created by that Act. In general, this means that the warrantor cannot both
give you a written warranty and deprive you of your reasonable expectations
by the use of "fine-print" language (such as an "as is"
clause) that takes away your implied warranty rights.
A warrantor can disclaim implied warranties in the sale of a new
product that is sold without a written warranty, but the disclaimer
must be conspicuously attached to the product and must inform you in plain
language, prior to the sale, that the product is being sold on an "as
is" basis, and that if the product proves defective, you must
pay all of the repair costs. Moreover, if a court determines that it would
be "unconscionable" to enforce the language disclaiming the implied
warranties, it may refuse to do so, or may enforce the disclaimer in a limited
but not unconscionable way.
REMEDIES FOR FAILING TO LIVE UP TO THE WARRANTY
If the product does not measure up to the warranty of general fitness
or is not as represented in its advertising, its sales literature or its
warranty, the California Commercial Code states that you can reject ant
return the product with an explanation if you act immediately upon delivery
and before acceptance. If you have accepted the product, you can still cancel
your acceptance of it and return it with an explanation promptly if the
defect substantially impairs its value to you.
At some point -- the earlier the better -- you must decide which of the
two basic remedies to pursue: either keep the product and seek money for
any losses (e.g., repair costs) that you have sustained, or cancel the sale,
return the product and seek your money back. In either case, you must make
the other party (or parties) aware of your claim, preferably in writing.
If the defect is minor, or you have a special reason to keep the defective
product (e.g., a used motor vehicle on which you have performed personal
labor), the Commercial Code states that you can keep the product and make
a claim for money damages. You may recover money for any losses that result
from the seller's failure to perform its legal duties, as determined in
any reasonable manner. If the warrantor does not voluntarily honor your
claim, you have the right to sue (e.g., in small claims court).
Before cancelling a sale, you should always give the seller or manufacturer
a reasonable opportunity to "cure" the product's defective performance
by making necessary repairs. In general, a manufacturer or other warrantor
is entitled to a reasonable number of repair attempts. (If the product is
a new car and the defect is a major one, it is presumed that four attempts
or 30 calendar days out of service is sufficient, although this presumption
can be rebutted. The four repair attempts or 30 days out of service must
occur within the earlier of the first year or 12,000 miles.)
You can return a defective product only if the defect was unknown to
you when you accepted the product, or, if known, you accepted the product
because of the seller's assurance that the defect would be corrected. Any
return must occur within a reasonable length of time after you discover
the defect, or after a "reasonable" buyer "should have"
discovered the defect.
If you return a defective product, you must inform the seller, preferably
in writing, of the reasons that you are returning it. A copy of your letter
should be sent to the manufacturer (if the product was purchased new), as
well as to the agency that financed the purchase.
If the return was legally proper, the Commercial Code states that you
have a right to recover the downpayment and any installments that you have
paid, plus, in some cases, money for any actual damages resulting from the
seller's failure to honor its obligations. The cost of any necessary towing
or repairs, as well as the cost of financing, may be recoverable. If the
seller has gone out of business or refuses to honor your rights, it is possible
that you may be able to assert such a claim against the financing agency.
Read your credit contract to determine if you have that right. If not, check
with a lawyer.
If you accept a defective product and do not have a legal right to return
it (for example, because the defect is minor or because of a delay in asserting
your rights), you may still be able to assert your other remedies. For instance,
you may keep the product and assert a claim for your actual losses. You
will have to show that the warranty existed, that the product was defective,
and that the defect caused the losses you are claiming.
A buyer of a defective product can use any of the laws mentioned above
to go to court to recover a judgment for either money damages, or other
relief, such as cancellation, because of the warrantor's failure to honor
its warranty, service contract or an express or implied warranty.
A violation of law by the warrantor (e.g., its failure to express its
warranty in plain and understandable language), also may give you a right
to recover any losses that result from the violation. A "willful"
violation also may give you a right to recover a civil penalty.
MODIFICATION OF LEGAL REMEDIES
Most warrantors limit your remedies to "repair or replacement of
parts." In other words, there is no promise to replace a defective
product or reimburse you for the cost of repairs or other expenses. In many
transactions, including those involving full warranties, this limitation
is legal (except for personal injury damages); but there are several restrictions
on the warrantor's power to limit your remedies. For instance, if the remedy
provided by the warrantor in its written warranty does not provide a workable
remedy for you, you may have other remedies too, including the right
to return the product and receive back what you have paid, and/or the right
to recover damages for all of the losses that you have suffered because
of the defect. But you must first attempt to use the remedies that are provided
in the written warranty -- that is, give the warrantor a meaningful opportunity
to repair the defective product.
USED CAR SALES
Under California law -- the California Commercial Code -- an unwritten
implied warranty of general fitness is present in most retail sales of both
new and used products, including used cars sold by a dealer, even when there
is no written warranty. Moreover, as pointed out above, there is an implied
warranty in every retail used car sale in which there is a written warranty
made by the retail seller or distributor.
The meaning of the implied warranty in the sale of a used car
depends upon what the car's "contract description" was. In determining
a used car's contract description, the car's appearance, price, the seller's
conduct and language, any advertising, as well as your actual understanding,
are all important. If a used automobile is offered for sale for your personal
use, the "contract description" ordinarily will be a car that
is fit for the ordinary purpose for which cars are used, i.e., passenger
transportation. On the other hand, if you buy a car that you know is in
need of repair, the implied warranty will not cover those defects.
If the contract contains an "as is" warranty disclaimer clause,
the dealer may argue that you have no rights against the dealer if the car
is defective. Some courts, however, have refused to give "as is"
clauses legal effect where the results would be unconscionable.
One out-of-state court has said flatly that "a general disclaimer
clause is not appropriate to a consumer sale." The court declared
that an "as is" disclaimer in a used car sale is legally ineffective
unless it is shown that the disclaimer was explicitly negotiated
between buyer and seller, and the written disclaimer has set forth with
particularity the specific qualities of fitness that are being disclaimed.
The oral statements made by the dealer or its sales agents may also be
enforceable. If the sales agent has stated that the car was in "good
mechanical condition," the dealer may be required to live up to its
promise. If the evidence is clear and convincing that the statement was
actually made, a statement of that kind usually will result in an express
warranty. It also will help define the meaning of the implied warranty of
general fitness in your sale.
A used car dealer (like the seller of a new product) cannot disclaim
the implied warranties in any sale in which a written warranty is provided
by the retail seller or distributor. You will therefore be assured of the
benefits of an implied warranty if the seller or distributor has furnished
a written warranty. Where a written warranty is given in a used car sale,
the duration of the implied warranty will be the same as the written warranty,
but not less than 30 days nor more than three months. Its duration will
be at least 30 days, even if the duration of the written warranty is less.
Therefore, in a used car sale which includes an express written warranty,
you will be protected by both the written warranty and an implied warranty
of general fitness.
NOTICE: We attempt to make our legal guides accurate as of the
date of publication, but they are only guidelines and not definitive statements
of the law. Questions about the law's application to particular cases should
be directed to a specialist.
Prepared by:
RICHARD A. ELBRECHT
Supervising Attorney
Legal Services Unit
Department Of Consumer Affairs
Post Office Box 310
Sacramento, CA 95802
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