Bad example. There is a point at which the customer is not supposed to believe everything he's told. Read about "puffing".** Or maybe he can believe it but he can't base a claim on it. Pretty sure it would cover a statment that you don't have to hold the shovel.
**This might relate to used car ads that claim the car is a cream puff, whatever that means. It might only apply to second hand, but I think your example, don't have to hold it, would be included even for something new.
But you're right about your real life case.
A lot of people think they can't subpoena people to small claims court. I think in most or all states you can. If in your complaint you quote the guy and the store doesn't bring him they probably won't blame you for his not being there, but how much they will believe you about what he said without his being there to x-examine, I don't know. The wrapper on the stuff is more imporant and bring printed evidence like a paid bill that says "driveway sealed" to prove that. If you did it yourself, maybe you have at least a log entry in your company's project schedule.
What you say IS evidence, but it helps a lot to have printed evidence. If you seem to lie or fudge and he is convinced you have, the judge is entitled to consider eveytthing you say to be false. Of course the same peroblem for the store.
The question here is, Is the store responsible for the man's mistakes in labeling, like the man is. If I ever knew, I can't remember this particular question.
The insurance companyl, the managers and the webpage all work for Lowes. Don't take legal advice from the other side.
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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.
I woudn't count on that. I used to got Marketfest Pro weekend computer shows and at one I bought the parts neede to make a computer.
The floppy drives didnt' work and the vendor at the show wouldn't make good. I called Market Pro and they said, Well they only have to live up to to their advertising. I said they didnt'. Reluctantly they called the vendor and I'm sure he said he didnt' do anything wrong, and they called me back and they were done with me.
Now Lowes *ought* to be a lot more responsble than that. You're right, stores grow by good customer service, and while The customer is always right is not practical in some businesses, or anywhere**, your case is somewhere not at the extremes.
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 generic statement. 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:
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|lang_iw|lang_es&client=firefox-aHome > 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? No place 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, who buys 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.
Of course conceivably that could take you out of the status of a retail consumer to someone who know the usage of trade, which is referred to in some way in exception 3c "(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade."
I'm not sure 3c applies at all however to this case.
Have someone check the ingredients of the Ice Melt too.
You really can't expect someone to read all the posts in a thread this long, or even shorter. IF someone dl's the last 100 posts in the newsgroup, or the last 300, he may have no idea how many posts there already have been to a given thread. And if he waits to post until he has read every post available to him, he will have forgotten what he wnted to say, and it won't be interesting to him anymore. All the people who posted early in the thread did so without knowing what added info would come later, including info from you.
He didn't even re-ask any questions, but you're reanswering them anyhow. Don't complain later. :)
Yes I think so. Corporations don't have mouths or hands or legs. They can only speak through their attorney. Some states, maybe all by now, have amended the law to allow small corporations, like family businesses and maybe bigger, to appear without a lawyer. But this is an exception to the normal rule.
The tv courts are not courts but arbitration forums and they could have just about any rules they want on stuff like this. I don't think I've ever seen a lawyer who wasn't also the plaintiff or respondent, but I think all of the corporations I've seen have been small ones. Maybe the big ones are too smart to appear on the show. I think it some of the litigants were smarter, they woudn't humiliate themselves on tv either, which might be why so many of them are poor, because for them the 300 dollars each it pays, or 500 or 200 or something like that is more of an incentive than it would be for someone who's not poor. But others are middle class and just have no idea how bad they might look, even if they win.
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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