Under Georgia law, an express warranty is a representation made by a seller of goods, contemporaneously with and as part of the contract of sale, having reference to the character, quality, or title, by which the seller "promises or undertakes to insure that certain facts shall be as he then represents them." N. Ga. Ready Mix Concrete Co. v. L & L Constr., Inc., 508 S.E.2d 722, 726 (Ga. App. 1998). The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether the language purported to state a fact upon which it may be fairly presumed the seller expected the buyer would ordinarily rely.
O.C.G.A. § 9-11-50 (a).North Georgia Ready Mix Concrete Co., Inc. v. L L Constr., Inc., 235 Ga. App. 68, 69 (1) ( 508 S.E.2d 722) (1998).Redwine v. Windham, 237 Ga. App. 149, 151 ( 513 S.E.2d 13) (1999).
goods, and by which he promises or undertakes to insure (sic) that certain facts are or shall be as he then represents. N. Ga. Ready Mix Concrete Co. v. L & L Const., Inc., 235 Ga.App. 68, 72 (1998). This is consistent with Georgia's commercial code, which provides that an express warranty can be created by “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain” or “[a]ny description of the goods which is made part of the basis of the bargain.”
However, "[c]ontractual duties extend by law far beyond those seen within the ‘four corners’ of the written contract document, and must be searched for within the hidden veils of the law." 3 Bruner & O'Connor Construction Law, Doctrine of Warranty: Express and Implied Warranties in Construction § 9:1 (2020); see alsoNorth Georgia Ready Mix Concrete Co., Inc. v. L & L Const., Inc. , 235 Ga.App. 68, 508 S.E.2d 722, 726 (1998) (finding that any description of goods that form the basis for a bargain creates an express warranty). Here, Harrod's mix designs provided certain specifications, and there is a genuine issue of material fact as to whether Harrod's concrete met those specifications.
Plaintiff has also failed to allege that the representations were made contemporaneously with and as a part of the contract for the sale of the Hydroxycut goods. See North Georgia Ready Mix Concrete Co. v. L L Constr., Inc., 508 S.E. 2d 722, 726 (Ga. Ct. App. 1998). The Court, therefore, grants Defendants' Motion to Dismiss the breach of express and implied warranty claims as pled in Counts IV and V.
A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them.N. Ga. Ready Mix Concrete Co., Inc. v. L L Const., Inc., 235 Ga. App. 68, 72, 508 S.E.2d 722 (1998) (quoting Elgin Jewelry Co. v. Estes Dozier, 122 Ga. 807, 50 S.E. 939 (1905)). `The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely, and upon which a buyer would ordinarily rely.
Implied warranties arise by operation of law and can be disclaimed. N. Ga. Ready Mix Concrete Co., Inc. v. L L Const., Inc., 508 S.E.2d 722, 726 (Ga.Ct.App. 1998). The Georgia Uniform Commercial Code sections addressing implied warranties of merchantability and implied warranties of fitness for a particular purpose specifically allow for their exclusion or modification.