Lowe's blows

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Okay, I promise not to read another one of your posts. It's just you two were taking up half the newsgroup.
Buh bye.
Steve
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Oh brother!
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You, too, Bubba.
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On Fri, 9 Apr 2010 19:12:17 +0000 (UTC), snipped-for-privacy@kamens.brookline.ma.us (Jonathan Kamens) wrote:

They definitely do that on the web, but I woudl guess in person purchasers aren't bound by what it says on the web.
Still, it would be a little strange that they do this on the web and then make no effort to do it in the stores. Maybe that's because that's the way stores have always been run, and they thought they could be stricter on the web.
There is no one to consult with when buying on the web. even if people think the store clerks are no better than no one, myabe lowes thinks they make a difference. Although lots of people buy things without talking to anyone.
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On Fri, 9 Apr 2010 11:18:36 -0700 (PDT), Frank from Deeeetroit

+1 on that.
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On 4/9/2010 1:51 PM, Jonathan Kamens wrote:

Well said, big box (or anyone else) can make any declaration they want to scare away the uninformed but that doesn't mean it is correct.
Lowes likely showed their contract with their supplier to the OP because they thought it would make them go away.
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On Thu, 8 Apr 2010 15:18:02 -0700 (PDT), DerbyDad03

Look up "Warranty of merchantability"
Okay, I looked it up. Wikipedia isn't the best source and I haven't read it yet, but i"m posting it regardless
The warranty of merchantability is implied, unless expressly disclaimed by name,
==> This implies it can be disclaimed, but that mght be a genericstatement. Yes it is. It covers all countries without noting exceptions. It's the statutes of NC that matter, probably in its adoption of the UCC.
or the sale is identified with the phrase "as is" or "with all faults." To be "merchantable", the goods must reasonably conform to an ordinary buyer's expectations, i.e., they are what they say they are. For example, a fruit that looks and smells good but has hidden defects would violate the implied warranty of merchantability if its quality does not meet the standards for such fruit "as passes ordinarily in the trade". In Massachusetts consumer protection law, it is illegal to disclaim this warranty on household goods sold to consumers etc.
Unrelated here but it was the next paragraph, so I'll quote it: The warranty of fitness for a particular purpose is implied when a buyer relies upon the seller to select the goods to fit a specific request. For example, this warranty is violated when a buyer asks a mechanic to provide snow tires and receives tires that are unsafe to use in snow. This implied warranty can also be expressly disclaimed by name, thereby shifting the risk of unfitness back to the buyer.
Aha, further down; Fitness: United States In the United States, the obligation is in Article 2, Section 315 of the Uniform Commercial Code. The warranty of fitness differs from a warranty of merchantability in that it applies to all sellers, not only professional merchants. In the United States, this warranty is sometimes referred to simply as a warranty of fitness.
Merchantability: United States In the United States, the obligation is in Article 2 of the Uniform Commercial Code (UCC). This warranty will apply to a merchant (that is, a person who makes an occupation of selling things) who regularly deals in the type of merchandise sold.
Under US law, goods are 'merchantable' if they meet the following conditions: 1. The goods must conform to the standards of the trade as applicable to the contract for sale. 2. They must [be] fit for the purposes such goods are ordinarily used, even if the buyer ordered them for use otherwise. 3. They must be uniform as to quality and quantity, within tolerances of the contract for sale. 4. They must be packed and labeled per the contract for sale. 5. They must meet the specifications on the package labels, even if not so specified by the contract for sale.
If the merchandise is sold with an express "guarantee", the terms of the implied warranty of merchantability will fill the gaps left by that guarantee. If the terms of the express guarantee are not specified, they will be considered to be the terms of the implied warranty of merchantability. The UCC allows sellers to disclaim the implied warranty of merchantability, provided the disclaimer is made conspicuously and the disclaimer explicitly uses the term "merchantability" in the disclaimer.[1] Some states, however, have implemented the UCC such that this can not be disclaimed.
So we still don't know about North Carolina, but I'm pretty sure that the disclaimer on the webpage is not applicable to purchases made in person, unless they can show he had read the warranty on the webpage. If he didn't read it, they can't show it.
OKay: http://webcache.googleusercontent.com/search?q che:edTrgAoSQVEJ:www.lawserver.com/law/state/north-carolina/nc-laws/north_carolina_laws_25-2-314+%22North+Carolina%22+UCC+merchantability&cd=6&hl=en&ct=clnk&gl=us&lr=lang_en|lang_iw|lang_es&client=firefox-a Home > For Small Business > {More Business Law} > Uniform Commercial Code > Sales (UCC Article 2) > North Carolina Laws 25-2-314 - Implied warranty: Merchantability; usage of trade
Sales (UCC Article 2)
North Carolina Laws 25-2-314 - Implied warranty: Merchantability; usage of trade North Carolina Laws > Chapter 25 > Article 2 > 25-2-314 - Implied warranty: Merchantability; usage of trade
Current as of: 2008 Check for updates
25-2-314. Implied warranty: Merchantability; usage of trade.
(1) Unless excluded or modified (G.S. 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable 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 average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
==> The line above is important. (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.
==> Also imporant!!!! (3) Unless excluded or modified (G.S. 25-2-316) other implied warranties may arise from course of dealing or usage of trade.
(1965, c. 700, s. 1.) Prev | Next See also: North Carolina Laws > Chapter 25 > Article 2 - Sales
Next section, harder to understand and apply afaic, and this is where the answer lies, specifically was there a conspicuous notice that there was no warranty of merchantibility. Is a notice, if there is one, on the receipt good enough if he doesn't get the receipt until after he pays the money and owns the stuff? I'm sure I have a receipt somewehere for something. Is there extra writing, on the back of the paper, or is there only what pertains to the current transiaction, sku, description, price, total, amount tendered, change.
If it does't say it there, I think Lowes is on the hook because I've never seen it anywhere else and the webpage doesn't count IMO.
Home > For Small Business > {More Business Law} > Uniform Commercial Code > Sales (UCC Article 2) > North Carolina Laws 25-2-316 - Exclusion or modification of warranties
Sales (UCC Article 2)
North Carolina Laws 25-2-316 - Exclusion or modification of warranties North Carolina Laws > Chapter 25 > Article 2 > 25-2-316 - Exclusion or modification of warranties
Current as of: 2008 Check for updates
25-2-316. Exclusion or modification of warranties.
(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (G.S. 25-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous,
==> Well, it seems it can be excluded, but was it conspicuous? Noplace I've seen in Lowes is there anything like this except I haven't read the receipt. The receipt is tendered after the thing is bought. Not sure how much that matters. Another good question for the legal newsgroup.
and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
===> I don't think paragraph 3 below applies to a retail consumer, whobuys only one bag, or 4, but read them.
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
(4) Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (G.S. 25-2-718 and 25-2-719).
(1965, c. 700, s. 1.) Prev | Next See also: North Carolina Laws > Chapter 25 > Article 2 - Sales

See above.

Good idea.
It's amazing how much I like law, for about 10 minutes a week. No wonder I didn't finish law school, where they expect you to do it at least 40 hours a week.
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The answer is look closely at the text of the demand letter you posted. Under contracts. Lowe's has indemnified themselves from liability. Under that contract the have advised the manufacturer to contact their insurance carrier, for liability insurance claims.
If my Toyota, had an unintended accelerations: should I sue Toyota or the local dealer?
For a restaurant... only eat in health department inspected businesses .. lesson learned :-]
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sues them and wins, then they have the contractural right to get reimbursed by the maker. That agreement is with the Mfr. and has no impact on whether someone could sue Lowes and win.

Aggressive lawyer would sue both PLUS whoever made the part(s) involved.
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wrote:

And an inspection by a health department doesn't mean you won't get food poisoning from the guy who just touched the doorknob before you. Do you ever use the public john at a restaurant?
Steve
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On Thu, 8 Apr 2010 17:15:08 -0700, "Steve B"

I do, as much as possible. I'm hoping to build up antibodies to tide me through my old age. I have little idea if it works that way or not. :)

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Actually there was a similar case on Peoples Court last year. Someone ordered a dish that had pitted olives in it. One of the olives contained a pit and the customer broke a tooth on it. They sued the restaurant and....they LOST. The judge said to prevail the plaintiff would have to show that the restaurant was negligent and did something wrong, which they did not. The judge said they might have a claim against the olive maker, but even then, everyone should know that it's not possible to guarantee 100% perfect removal of all pits.
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Actually there was a similar case on Peoples Court last year. Someone ordered a dish that had pitted olives in it. One of the olives contained a pit and the customer broke a tooth on it. They sued the restaurant and....they LOST. The judge said to prevail the plaintiff would have to show that the restaurant was negligent and did something wrong, which they did not. The judge said they might have a claim against the olive maker, but even then, everyone should know that it's not possible to guarantee 100% perfect removal of all pits.
======= That's an interesting PL case. I've heard the same thing about "fish bones". Unfortunately, the plaintiff can't sue God. I'll bet they could if they could serve a subpoena. (St. Peter's Square? Sistine Chapel?)
Our court system is out of control but thankfully there are some glimpses of sanity.
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Subpoenas there may be coming.

We've had a lot of Sanity in this thread already.
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wrote:

LOL...Homer Simpson
http://www.imdb.com/title/tt0701277/quotes
That immediately came to mind.
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I haven't seen that paragraph. Are you still reading? Can you point me to it or post it again?
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On Thu, 8 Apr 2010 09:40:39 -0700 (PDT), DerbyDad03

The insurance companyl, the managers and the webpage all work for Lowes. Don't take legal advice from the other side.

http://www.lowes.com/cd_Terms+and+Conditions+of+Use_360300527_#Product%20Information%20and%20Warranties
Like many webpages, the Lowes webpage is oriented to web transactions. For example "Lowe's has made a conscientious effort to display and describe its products and services on the site accurately... " On some webpages it's practically impossible to find out about in-store policies and here, I don't think one can assume that limitations imposed on webshoppers also apply to in person shoppers.
Under dislaimer:. LOWE'S AND ITS SUBSIDIARIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW,
to the full extent permissable by applicable law.
LOWE'S AND ITS SUBSIDIARIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
I don't think they can disclaim that one, because the law covers it afaicr. See the Uniform Commercial Code, which has been adopted by all 50 states with very minor variation in a few states.
I don't know why they say in one place "to the full extent permissable by applicable law" and not in this place, but if there's a law imposing liablity, nothing they say will make it go away.
If the product were labeled "as is", I"m not sure if that would help or not, becuase it's the labelling as to how it can be used that is a problem, and not afawk, the condition of the product in the bag, and what he was told posssibly (someone is right that "like I bought before" is a problem.), but it's not labeled as is so it doesnt' matter.
NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS, AND FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS. LOWE'S AND ITS SUBSIDIARIES WILL NOT BE LIABLE FOR ANY DAMAGES OR ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, ANY DELAYS ON THE SITE, OR THE INABILITY TO USE THE SITE, ANY PORTION THEREOF, OR ANY HYPERLINKED WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF LOWE'S OR ANY OF ITS SUBSIDIARIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
These last 12 lines are about the site, not about the store or the products.
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Was It "Lowes" Ice melter brand, or another company, if it isnt Lowes you wont win you need to go after the other copmpany.
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On Thu, 8 Apr 2010 08:48:20 -0700 (PDT), ransley

Not so.
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