CACI No. 3210. Breach of Implied Warranty of Merchantability - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2024 edition)
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3210.Breach of Implied Warranty of Merchantability - Essential
Factual Elements
[Name of plaintiff] claims that the [consumer good] did not have the
quality that a buyer would reasonably expect. This is known as “breach
of an implied warranty.” To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] bought a[n] [consumer good]
[from/manufactured by] [name of defendant];
2. That at the time of purchase [name of defendant] was in the
business of [selling [consumer goods] to retail
buyers/manufacturing [consumer goods]];
3. That the [consumer good] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
trade;] [or]
3. [was not fit for the ordinary purposes for which the goods are
used;] [or]
3. [was not adequately contained, packaged, and labeled;] [or]
3. [did not measure up to the promises or facts stated on the
container or label;]
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s breach of the implied warranty was a
substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, December 2014, November 2018
Directions for Use
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof of notice is necessary, add
the following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] did not have the quality that
a buyer would reasonably expect;
See also CACI No. 1243, Notification/Reasonable Time. Instructions on damages
and causation may be necessary in actions brought under the California Uniform
Commercial Code.
In addition to sales of consumer goods, the Consumer Warranty Act applies to
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leases. (See Civ. Code, §§ 1791(g)-(i), 1795.4.) This instruction may be modified
for use in cases involving the implied warranty of merchantability in a lease of
consumer goods.
Sources and Authority
• Buyer’s Action for Breach of Implied Warranties. Civil Code section 1794(a).
• Damages. Civil Code section 1794(b).
• Implied Warranties. Civil Code section 1791.1(a).
• Duration of Implied Warranties. Civil Code section 1791.1(c).
• Remedies. Civil Code section 1791.1(d).
• Implied Warranty of Merchantability. Civil Code section 1792.
• Damages for Breach; Accepted Goods. California Uniform Commercial Code
section 2714.
• “As defined in the Song-Beverly Consumer Warranty Act, ‘an implied warranty
of merchantability guarantees that ‘consumer goods meet each of the following:
[¶] (1) Pass without objection in the trade under the contract description. [¶] (2)
Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are
adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or
affirmations of fact made on the container or label.’ Unlike an express warranty,
‘the implied warranty of merchantability arises by operation of law’ and
‘provides for a minimum level of quality.’ ‘The California Uniform Commercial
Code separates implied warranties into two categories. An implied warranty that
the goods “shall be merchantable” and “fit for the ordinary purposes” is
contained in California Uniform Commercial Code section 2314. Whereas an
implied warranty that the goods shall be fit for a particular purpose is contained
in section 2315. [¶] Thus, there exists in every contract for the sale of goods by
a merchant a warranty that the goods shall be merchantable. The core test of
merchantability is fitness for the ordinary purpose for which such goods are
used. (§ 2314.)’ ” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19,
26-27 [65 Cal.Rptr.3d 695], internal citations omitted.)
• “Here the alleged wrongdoing is a breach of the implied warranty of
merchantability imposed by the Song-Beverly Consumer Warranty Act. Under
the circumstances of this case, which involves the sale of a used automobile, the
element of wrongdoing is established by pleading and proving (1) the plaintiff
bought a used automobile from the defendant, (2) at the time of purchase, the
defendant was in the business of selling automobiles to retail buyers, (3) the
defendant made express warranties with respect to the used automobile, and (4)
the automobile was not fit for ordinary purposes for which the goods are used.
Generally, ‘[t]he core test of merchantability is fitness for the ordinary purpose
for which such goods are used.’ ” (Gutierrez v. Carmax Auto Superstores
California (2018) 19 Cal.App.5th 1234, 1246 [248 Cal.Rptr.3d 61] [citing this
instruction], internal citations omitted.)
• “[T]he buyer of consumer goods must plead he or she was injured or damaged
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by the alleged breach of the implied warranty of merchantability.” (Gutierrez,
supra, 19 Cal.App.5th at p. 1247.)
• “Unless specific disclaimer methods are followed, an implied warranty of
merchantability accompanies every retail sale of consumer goods in the state.”
(Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39
Cal.Rptr.2d 159].)
• The implied warranty of merchantability “does not ‘impose a general
requirement that goods precisely fulfill the expectation of the buyer. Instead, it
provides for a minimum level of quality.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295-1296 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The [Song Beverly] act provides for both express and implied warranties, and
while under a manufacturer’s express warranty the buyer must allow for a
reasonable number of repair attempts within 30 days before seeking rescission,
that is not the case for the implied warranty of merchantability’s bulwark against
fundamental defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th
1538, 1545 [173 Cal.Rptr.3d 454].)
• “The Song-Beverly Act incorporates the provisions of [California Uniform
Commercial Code] sections 2314 and 2315. It ‘supplements, rather than
supersedes, the provisions of the California Uniform Commercial Code’ by
broadening a consumer’s remedies to include costs, attorney’s fees, and civil
penalties.” (American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1295, fn.
2, internal citation omitted.)
• “The implied warranty of merchantability may be breached by a latent defect
undiscoverable at the time of sale. Indeed, ‘[u]ndisclosed latent defects . . . are
the very evil that the implied warranty of merchantability was designed to
remedy.’ In the case of a latent defect, a product is rendered unmerchantable,
and the warranty of merchantability is breached, by the existence of the unseen
defect, not by its subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009)
174 Cal.App.4th 1297, 1304-1305 [95 Cal.Rptr.3d 285], internal citations
omitted.)
• “[Defendant] suggests the ‘implied warranty of merchantability can be breached
only if the vehicle manifests a defect that is so basic it renders the vehicle unfit
for its ordinary purpose of providing transportation.’ As the trial court correctly
recognized, however, a merchantable vehicle under the statute requires more than
the mere capability of ‘just getting from point “A” to point “B.” ’ ” (Brand,
supra, 226 Cal.App.4th at p. 1546.)
• “[A]llegations showing an alleged defect that created a substantial safety hazard
would sufficiently allege the vehicle was not ‘fit for the ordinary purposes for
which such goods are used’ and, thus, breached the implied warranty of
merchantability.” (Gutierrez,supra, 19 Cal.App.5th at pp. 1247-1248.)
• “We recognize that ‘an important consideration under the implied warranty is
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consumer safety.’ However, ‘vehicle safety is [not] the sole or dispositive
criterion in implied warranty cases, which may turn on other facts.’ ” (DeNike v.
Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 384-385 [291 Cal.Rptr.3d
480].)
• “The notice requirement of [former Civil Code] section 1769 . . . is not an
appropriate one for the court to adopt in actions by injured consumers against
manufacturers with whom they have not dealt. ‘As between the immediate
parties to the sale [the notice requirement] is a sound commercial rule, designed
to protect the seller against unduly delayed claims for damages. As applied to
personal injuries, and notice to a remote seller, it becomes a booby-trap for the
unwary.’ ” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27
Cal.Rptr. 697, 377 P.2d 897], internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 71, 72
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.21-3.23,
3.25-3.26
2 California UCC Sales & Leases (Cont.Ed.Bar) Leasing of Goods, §§ 19.31-19.32
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.31[2][a] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.106 (Matthew Bender)
California Civil Practice: Business Litigation §§ 53:5-53:7 (Thomson Reuters)
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© Judicial Council of California.
