PJC Business

PJC 102.9

DTPA/I NSURANCE C ODE

PJC 102.9

Express Warranty—Goods or Services (DTPA § 17.50(a)(2); Tex. UCC § 2.313)

Failing to comply with an express warranty. An express warranty is any affirmation of fact or promise made by Don Davis that relates to the [ describe particular goods ] and becomes part of the basis of the bargain. It is not necessary that formal words such as “warrant” or “guarantee” be used or that there be a specific intent to make a warranty. [or] COMMENT When to use. PJC 102.9 may be used with PJC 102.8 to submit a claim of breach of express warranty involving the sale of goods. See Tex. Bus. & Com. Code § 17.50(a)(2) (DTPA); see also Tex. Bus. & Com. Code §2.313 (Tex. UCC) (creation of express warranty). Use of “or.” If used with other instructions (see PJC 102.10–102.13), PJC 102.9 must be followed by the word or , because a finding of any one of the acts or practices defined in the instructions would support recovery under the DTPA. Creation of warranty. The DTPA does not define “warranty.” Nor does it create any warranties; therefore, any warranty must be established independently of the Act. Melody Home Manufacturing Co. v. Barnes , 741 S.W.2d 349, 355 (Tex. 1987) (citing La Sara Grain Co. v. First National Bank of Mercedes , 673 S.W.2d 558, 565 (Tex. 1984)). Goods or services. The Uniform Commercial Code defines and creates warran ties in the sale of goods. Tex. UCC § 2.313. It defines “goods” as “all things . . . mov able at the time of identification to the contract for sale” and “the unborn young of animals and growing crops and other identified things attached to realty.” Tex. UCC § 2.105(a). The DTPA, however, has a broader definition of “goods” in that it includes real estate. DTPA §17.45(1) (“goods” means tangible chattels or real property pur chased or leased for use). The DTPA also includes services. DTPA § 17.45(2). There are no decisions compelling the use of the UCC definition of express war ranty set forth in PJC 102.9 in a nongoods case. In Southwestern Bell Telephone Co. v. FDP Corp. , 811 S.W.2d 572, 574 (Tex. 1991), the supreme court stated that because “sale of advertising is predominantly a service transaction, not a sale of goods, the warranty provisions of Article Two of the [UCC] do not explicitly govern this case.” The court also stated that “although the case at bar involves a service transaction, ref erence to the Code is instructive.” Southwestern Bell Telephone Co. , 811 S.W.2d at

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