Okla. Stat. tit. 12A § 2-314
Okla. Stat. tit. 12A, § 2-314
Oklahoma Code Comment
(1) Oklahoma has previously held in many cases that there is an implied warranty that the goods shall be merchantable. See the decisions below. The wording in this section of the Commercial Code differs substantially in several respects from the Uniform Sales Act (not passed by Oklahoma). The Uniform Sales Act provided that when goods were sold "by description" there was a warranty of merchantability. The language has given trouble in recent years. It has been held that purchases made in self serve stores carried no warranty because it was a sale Of specific, identified goods, and not a sale by "description." Williams v. S. H. Kress & Co., 48 Wash.2d 88, 291 P.2d 662 (1955). Oklahoma decisions have not discussed the problem, but in many cases Oklahoma has held, without discussion, that retailers were liable in cases in which the purchase was obviously made at self service stores. See Cook v. Safeway Stores, Inc., Okl., 330 P. 2d 375 (1958). The Commercial Code omits the requirement of sale by description, and, since Oklahoma apparently has never adopted this requirement of the Uniform Sales Act, the Commercial Code does not change Oklahoma law.
The Commercial Code restricts the warranty to "merchants with respect to goods of that kind." Thus, a sale by an individual not engaged in the business of selling goods of that kind will carry no implied warranty, although, of course, it is quite possible that the vendor will make express warranties which will be binding. In one previous Oklahoma case it was suggested that the implied warranty is made only by merchants. In Abbott v. Peppers, 157 Okl. 300, 12 P.2d 203 (1932) the defendant, a farmer, purchased a large quantity of seed potatoes, and sold some of them to his neighbors. One purchaser brought suit, alleging that the seed potatoes did not germinate. The court held that there was no implied warranty made by one not a grower, and that the rule of "caveat emptor" applied.
The Commercial Code is silent as to warranties of used goods. See, however, Official Comment 3. Oklahoma has previously held in many cases that there is no warranty of merchantability in the sale of used goods. Tibbets & Pleasant, Inc. v. Town of Fairfax, 145 Okl. 211, 292 P. 9 (1930); Henry v. Kennard, 178 Okl. 368, 62 P.2d 1184 (1936).
The Commercial Code expressly includes the sale of food or drink to be consumed on the premises. See Official Comment 5. There are no previous cases in Oklahoma.
This section leaves a question as to whether the word "merchant" is intended to include manufacturer, and thus impose the warranty upon a manufacturer to a remote vendee. However, Sec. 2-318 deals with this question by implication. See comments thereunder.
(2) Oklahoma has not previously segregated the implied warranty into classes as does the Code, but in most respects previous Oklahoma decisions have been consistent with this section. "Merchantability" has been defined in Oklahoma as "By 'merchantable' is meant that the goods are of a quality such as is generally sold in the market and suitable for the purpose for which they are intended. It is not an undertaking that the goods are of the best quality, but that they will be of a fair average quality." Wallace v. L. D. Clark & Son, 74 Okl. 208, 174 P. 557, 21 A.L.R. 361 (1918). Thus, pipe with different thread and which will not join together was held not merchantable, Markle v. Stekoll, 112 Okl. 287, 240 P. 1044 (1925); sardines which contained an excessive amount of oil and fewer fish than usually contained were held not merchantable, Wallace v. L. D. Clark & Sons, supra; foods which are impure or contain foreign substances were held not merchantable, Griffin v. Asbury, 196 Okl. 484, 165 P.2d 822 (1946, glass in Coke), Southwest Ice & Dairy, Products Co. v. Faulkenberry, 203 Okl. 279. 220 P.2d 257, 17 A.L.R.2d 1373 (1950, mouse in bottle of milk); Cook v. Safeway Stores, Inc., Okl., 330 P.2d 375 (1958).
Subsection (e) leaves doubt as to whether there is an implied warranty of the container only when the agreement specifies a particular kind of container or package, or whether it is intended to include a general warranty as to the container. If a coke bottle bursts and causes injury, is there a breach of implied warranty? Oklahoma has previously held that the warranty of merchantability does not include the container. Soter v. Griesedieck Western Brewery Co., 200 Okl. 302, 193 P.2d 575, 4 A.L.R.2d 458 (1948).
(3) In the previous Oklahoma decision of Wallace v. L. D. Clark & Son, 74 Okl. 208, 174 P. 557, 21 A.L.R. 361 (1918), concerning the sale of sardines, the court relied upon custom and usage to determine what is "merchantable" in the business.