When is Food Unfit For Its "Ordinary Purpose?"

The UCC says that every sale by a merchant includes the implied warranty of merchantability. "Merchantability," among other requirements, means that the goods are fit for the ordinary purpose for which such goods are intended. When the goods are food, that means that the warranty requires that the food be fit for human consumption. Typically, when the food contains foreign objects, like broken glass, or human fingers, the case is pretty clear that the warranty is breached.  However, what should be the test applied to determine if the warranty is breached when the food contains a natural, yet inedible object; i.e. beef bone in a hamburger, or a cherry pit in cherry nut ice cream. The emerging legal test seems to no longer turn on a foreign/natural object tests.  Instead the test is, "What is the reasonable expectation of the consumer?"

Needless to say, this consumer did not expect what she found in her green beans:

Can This be an Express Warranty?

In this post we pointed to the UCC Article 2 express warranty provisions.  In the video below, a bold statement is made by the retail sellers of coffee.  Is it a statement of fact or "puffing"?

Thank Goodness for Express Warranties

Under the UCC, an affirmation of fact that is part of the basis of the bargain constitutes an express warranty that the good will conform to the facts as affirmed. Prospective Dairy Queen customers were probably relieved to be able to rely on the express warranty springing from the affirmation of facts on the sign pictured below.  Perhaps a new slogan might be appropriate for DQ.  Here is my suggestion:

If you eat here and die,
It won't be from e-coli.



source of image: http://stevemandich.blogspot.com/2006/10/sign-o-times-1993.html