September 2020 Second Example Ten-point Answers to Virginia Essay Questions
September 2020 - QUESTION 5 – VIRGINIA BAR EXAMINATION
Peter, who was retired and very frugal, went to Donald’s Hardware Store (Donald’s) in Warrenton, Virginia, to purchase an extension ladder and a nail gun so that he could fix some broken shingles on the roof of his home. Peter was helped by Donald, who owned the store.
Peter told Donald he needed a ladder long enough to reach the roof on his two-story home, but when he learned how expensive the extension ladders were, he asked whether Donald would rent one to him for a day or two. Donald agreed to do so at the price of $20 per day and picked out a ladder for Peter to use.
Peter also was displeased with what he considered to be the high price of nail guns. Peter looked through the display of nail guns and found, for a price of $60, a used nail gun that had been traded in by another customer and reconditioned by Donald.
While Donald was busy with another customer, Donald's sixteen-year-old daughter Cameron was at the store's cash register. Cameron prepared two receipts. Because she did not know how long Peter would keep the ladder, she wrote the following on the front of the ladder receipt:
Extension Ladder - $20/day. Received: $20 on 9/1/2020
On the back of the ladder receipt, Cameron wrote in large letters the words "AS IS," just the way Donald had instructed her to do on all receipts. Cameron signed the receipt to acknowledge receipt of the $20 payment, and Peter signed it to acknowledge receipt of the extension ladder.
Cameron then asked Peter if he would like to try out the nail gun on some wood in the back of the store, but Peter declined, saying it "looked OK" and that he needed to get home. Cameron then wrote the receipt for the nail gun, which read: "Used/Reconditioned Nail Gun - $60." Cameron forgot to write "AS IS" on that receipt.
On the first day he used the items they both malfunctioned. The nail gun immediately malfunctioned when Peter tried to use it, and two nails shot into his hand. As he hurried down the ladder to tend to his injured hand, a rung on the ladder broke, and Peter fell to the ground, breaking his leg.
Peter timely brought a lawsuit against Donald’s in the Circuit Court of Fauquier County, alleging that under the Uniform Commercial Code as adopted in Virginia (UCC): the ladder was not fit for the purpose for which Donald knew Peter was going to use it, and that Donald's had thus breached the implied warranty of fitness for a particular purpose. Peter also alleged that because the receipt for the nail gun did not contain a disclaimer, Donald’s is in breach of the UCC’s warranties.
Donald’s responded to Peter’s claims that, regarding the ladder: (1) there was no applicable implied warranty of fitness, and (2) that even if the implied warranty of fitness for a particular purpose was applicable, the warranty had been excluded by Cameron's writing "AS IS" on the receipt.
Donald’s also argued that, regarding the nail gun: (1) the nail gun was expressly identified as a used item and, thus, the UCC does not apply, and (2) even if the UCC did apply, there is no implied warranty claim of any sort under the UCC because at the time of contracting, Peter did not rely on Donald's skill or judgment to select or furnish suitable goods.
|(a)||Is Donald’s correct on each of the arguments made regarding the absence of an implied warranty of fitness as to the ladder? Explain fully.|
|(b)||Is Donald’s correct on each of the arguments made regarding the absence of any sort of implied warranty as to the nail gun? Explain fully.|
September 2020 - QUESTION 5 – EXAMPLE ANSWER #1
a)1) Donald was incorrect that there was not implied warranty of fitness for a particular purpose.
The implied warrany of fitness for a particular purpose exists when the seller knows or has reason to know (from any source) of a buyer's particular purpose for buying a good from the seller and that the buyer relied on the seller's skill and judgment in selecting the good.
Here, Donald knew of Peter's particular purpose in buying the ladder. Peter told Donald that he needed a ladder long enough to reach the roof of his two-story home and asked Donald whether Donald would rent such a ladder to him. Thus, Donald knew of Peter's particular purpose. Donald also knew that Peter was relying on Donald's skill and judgment in selecting the ladder because Peter asked Donald if he would rent the ladder to him, and Donald subsequently picked out the ladder for Peter. Thus, the implied warranty of fitness for a particular purpose applied to the ladder.
a)2) Donald was correct that the implied warranty of fitness for a particular purpose was excluded.
Implied warranties can be excluded if they are disclaimed by use of words such as "As Is" or "with all faults." Here, the receipt for the ladder said in large words "AS IS" on the back. Peter then signed the receipt after Cameron gave it to him acknowleding that he received the ladder. By signing the receipt with the words "AS IS" in large font, the warranty of fitness for a particular purpose was effectively disclaimed.
b)1) The UCC applies to the sale of used goods.
Article 2 of the Uniform Commercial Code (UCC) governs the sale of goods. Goods are movables that are able to be identified at the time of contracting. The UCC applies to the sale of both new and used goods alike. Here, the nail gun was a good in that it was a movable item and was identifiable at the time of contracting. Thus, the UCC applies to the sale of the used nail gun.
b)2) The implied warranty of merchantability applied to the nail gun but was disclaimed by Peter's refusal to inspect the nailgun.
The implied warranty of merchantability applies when a good is sold by a merchant who deals in goods of the kind. The good must be fit for its ordinary purpose and pass without objection in the trade under the contract description. Here, Donald's was a hardware store so Donald was a merchant who sold goods of the kind because a nail gun would be sold in a hardware store. Thus, the implied warranty of merchantability appliled to the sale of the nail gun.
The implied warranty of merchantability can be disclaimed by use of the words "as is" or "with all faults," and if the disclaimer is oral the warranty must be disclaimed with the use of the word "merchantability." Here, Cameron forgot to write the word "AS IS" on the back of the receipt as she had done for the ladder. No other facts show that the warranty of merchantability was orally disclaimed or disclaimed in any other writing. Further, no implied warranty of fitness for a particular purpose applied to the nailgun because Peter did not tell Donald, nor did Donald know the particular purpose for which Peter wanted to purchase the nail gun.
Implied warranties may be diclaimed to the extent that the buyer inspects the goods to his satisfaction. If a buyer inspects the goods, the implied warranty is disclaimed to the extent that the inspection would have reasonably revealed defects. Further, if a buyer fails or refuses to inspect the good, the implied warranty is disclaimed as to what a reasonable inspection would have revealed. Here, Cameron asked Peter if he would like to try out the nail gun on some wood in the back of the store, but Peter declined by saying it "looked OK." The nailgun malfunctioned immediately after Peter used it the first time. The inspection of the nailgun at the store would have revealed this malfunction. Thus, the implied warranty of merchantability was disclaimed by Peter's refusal to inspect it at the store before purchase.