Breach: 08. Breach of Implied Warranty of Merchantability

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
(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.

See Cal. Com. Code § 2314.

For sale and leases of “Consumer Goods:”

1. Plaintiff bought a consumer good manufactured by defendant;
2. At the time of purchase, defendant was in the business of selling consumer goods to retail buyers;
3. The product was not of the same quality as those generally acceptable in the trade, or was not fit for the ordinary purposes for which the product is used, or did not conform to the quality established by the parties' prior dealings or by usage of trade; and
4. The failure of the product to have the expected quality was a substantial factor in causing Plaintiff's harm.

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