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Express Warranty Liability

On Behalf of | Nov 21, 2018 | Firm News

Can a home improvement store be held liable for representations made about their installation contractors? Big box home improvement retailers don’t actually perform the work themselves, but they still may face liability for the work of the contractors they suggest under an express warranty theory. If representations are made about these contractors, such as “world’s best” and “handpicked,” a home improvement retailer might have liability exposure.

In Texas a plaintiff can bring a cause of action for breach of express warranty when:

1. Defendant sold services to Plaintiff;

2. Defendant made a representation to Plaintiff about the quality or characteristics of the services by:

a. Affirmation of fact;

b. Promise; or

c. Description;

3. The representation became part of the basis of the bargain;

4. Defendant breached the warranty;

5. Plaintiff notified Defendant of the breach (if required under the terms of the agreement); and

6. Plaintiff suffered injury.

With respect to the third element (“basis of the bargain”), Texas treats this issue basically as a question of reliance. Additionally, if the Plaintiff establishes that an express representation was made during the bargaining, then Texas recognizes a rebuttable presumption that the representation became a part of the basis of the bargain.[1]

Therefore, when big box home improvement retailers make claims about the contractors they provide such as “world’s best” or “handpicked”, the statements could be considered an express warranty. That is because these statements deal with the quality and characteristics of the provided professionals. However, because express warranties are generally considered creatures of contract law, a disclaimer of express warranties is generally enforceable as a defense to a claim for breach of an express warranty.

There are not currently any Texas cases directly addressing potential liability of a Defendant who acts as a matchmaker between sellers and buyers of services and who make representations about the screening process for such sellers. But past cases involving express warranties can show the language retailers may want to avoid. Examples of language that was found to be sufficiently related to quality or characteristics to amount to an express warranty include:

· “any additional Termite treatment called for within one year from the date of this Warranty will be performed without charge to customer.” [2]

· Physician’s oral representation that patient’s plastic surgery results would look just like the picture of the model she selected before proposed plastic surgery.3

Although no major litigation has surfaced yet, big box retailers and their counsel should be aware of this possibility. It is important to carefully word claims about the quality and characteristics of third party contractors. Otherwise you may face potential litigation based on the acts of a third party entirely out of your control.


[1] Southwestern Bell Tel. Co. v. Marketing on Hold Inc., 308 S.W. 3d 909, 921 (Tex. 2010); Crosbyton Seed Co. v. Mechura Farms, 875 S.W. 2d 353, 361 (Tex. App. – Corpus Christi 1994, no writ).

[2] National Bugmobiles, Inc. v. Job Properties, 773 S.W. 2d 616, 619, 622 (Tex. App. – Corpus Christi 1989).

3 Sorokolit v. Rhodes, 889 S.W. 2d 239, 240 (Tex. 1994).


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