A warranty under subsection (1) of this Code section will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.
Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications.
(Code 1933, § 109A-2 - 312, enacted by Ga. L. 1962, p. 156, § 1.)
Law reviews.- For article, "Sales Warranties Under Georgia's Uniform Commercial Code," see 1 Ga. St. B.J. 191 (1964). For article discussing interpretation of warranties under the Uniform Commercial Code, see 4 Ga. L. Rev. 469 (1970). For article discussing the implied warranty of fitness for a particular purpose, see 9 Ga. L. Rev. 149 (1974). For article, "Products Liability Law in Georgia: Is Change Coming?" see 10 Ga. St. B.J. 353 (1974). For article, "Buyer's Right of Rejection: A Quarter Century Under the Uniform Commercial Code, and Recent International Developments," see 13 Ga. L. Rev. 805 (1979). For note, "Allowance of Punitive Damages in Products Liability Claims," see 6 Ga. L. Rev. 613 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity in the provisions, cases decided under former Civil Code 1910, § 4139 and former Code 1933, § 96-301 are included in the annotations for this section.
Warranty by seller.
- If there is no express covenant of warranty, purchaser must exercise caution in detecting defects, but seller in all cases, unless expressed or from nature of the transaction excepted, warrants title and right to sell, that article sold is merchantable and reasonably suited to use intended, and that seller knows of no latent defects undisclosed. Jones v. Knightstown Body Co., 52 Ga. 667, 184 S.E. 427 (1936); Wilkinson v. Rich's, Inc., 77 Ga. App. 239, 48 S.E.2d 552 (1948) (decided under former Code 1933, § 96-301).
Where plaintiff purchaser in affidavit denies that plaintiff had actual knowledge that automobile had prior lien lodged against it at time of purchase transaction, and lack of prior actual knowledge has not been controverted in any manner by defendant, warranty that goods shall be delivered free of any lien is included in contract of sale. Christopher v. McGehee, 124 Ga. App. 310, 183 S.E.2d 624, aff'd, 228 Ga. 466, 186 S.E.2d 97 (1971).
Implied warranty in sale of personalty.
- In every sale of personalty there is implied full warranty of title by vendor, unless such a warranty is negatived or restricted by express contract. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264 (1935) (decided under former Civil Code 1910, § 4135).
How warranties raised.
- Implied warranty is raised by statute, while express warranty is by contract. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 206 S.E.2d 857 (1974), aff'd, 233 Ga. 578, 212 S.E.2d 377 (1975).
Buyer is entitled to transfer of good, clean title in rightful manner so that buyer will not be exposed to a law suit in order to protect it. R.C. Craig, Ltd. v. Ships of Sea, Inc., 345 F. Supp. 1066 (S.D. Ga. 1972), later proceeding, 401 F. Supp. 1051 (S.D. Ga. 1975).
Mere fact that another name appears as the owner of a motor vehicle on the certificate of title does not negate a seller's warranty of title, particularly in the face of the seller's alleged representation that the seller owns the vehicle. Spoon v. Herndon, 167 Ga. App. 794, 307 S.E.2d 693 (1983).
The issuance of certificates of title pursuant to O.C.G.A. § 40-3-28 of the motor vehicles law does not, as a matter of law, negate the existence of express or implied warranties of title which the seller gives the purchaser in the course of their dealings. Hudson v. Gaines, 199 Ga. App. 70, 403 S.E.2d 852 (1991).
Cited in Bell v. Menzies, 110 Ga. App. 436, 138 S.E.2d 731 (1964); Cochran v. Horner, 121 Ga. App. 297, 173 S.E.2d 448 (1970); Moister v. National Bank (In re Guaranteed Muffler Supply Co.), 1 Bankr. 324 (Bankr. N.D. Ga. 1979); Fritts v. Mid-Coast Trading Corp., 166 Ga. App. 31, 303 S.E.2d 148 (1983).
Breach of Warranty
Elements of action for breach of implied warranty are invalidity of seller's title and loss to buyer. A petition which by its allegations makes both of these elements appear is not subject to demurrer. Welfare Fin. Corp. v. Waters, 98 Ga. App. 20, 104 S.E.2d 669 (1958) (decided under former Code 1933, § 96-301).
Breach of warranty shown.
- Where petition alleges that through failure of warranty in sale of personalty vendee became liable to pay sum of money and discharged the liability by paying the money, then petition shows breach of warranty and loss to plaintiff appears from its allegations. Welfare Fin. Corp. v. Waters, 98 Ga. App. 20, 104 S.E.2d 669 (1958) (decided under former Code 1933, § 96-301).
Notice of breach.
- A condition precedent to a contract action for breach of warranty of title is that the plaintiff must have notified the defendant of the breach within a reasonable time thereof as provided in O.C.G.A. § 11-2-607(3)(a). Oden & Sims Used Cars, Inc. v. Thurman, 165 Ga. App. 500, 301 S.E.2d 673 (1983).
Impleaded claims.
- Third-party claims of breach of warranty under O.C.G.A. § 11-2-312(3), and indemnity were proper to implead into a patent infringement case under Fed. R. Civ. P. 14(a) because the essence of the claims were to show that others were liable for any infringement. However, because the claims involved separate areas of law and might be prejudicial or confuse the jury, severance was proper under Fed. R. Civ. P. 42(b). Tillotson Corp. v. Shijiazhaung Hongray Plastic Prods., F. Supp. 2d (N.D. Ga. Oct. 23, 2006).
OPINIONS OF THE ATTORNEY GENERAL
Responsibility for ad valorem taxes.
- Where purchaser of automobile purchases it after January 1 of that year, the seller is responsible for ad valorem taxes on it; however, since license plates cannot be purchased for motor vehicle until ad valorem taxes have been paid, and since there is a lien against the vehicle which could be enforced by taxing authority, if seller has not paid taxes, buyer may desire to pay taxes and then proceed against seller. 1967 Op. Att'y Gen. No. 67-309.
RESEARCH REFERENCES
Am. Jur. 2d.
- 38 Am. Jur. 2d, Guaranty, § 10. 63 Am. Jur. 2d, Products Liability, §§ 659et seq., 875 et seq. 67A Am. Jur. 2d, Sales, §§ 794-821.
3 Am. Jur. Pleading and Practice Forms, Automobiles and Highway Traffic, § 66.
C.J.S.- 77A C.J.S., Sales, § 258 et seq.
U.L.A.- Uniform Commercial Code (U.L.A.) § 2-312.
ALR.
- Loss of profits as elements of damages for fraud of seller, as to quality of goods purchased for resale, 28 A.L.R. 354.
Warranty of title by seller in conditional sale contract, 132 A.L.R. 338.
Construction and application of provision in conditional sale contract regarding implied warranties, 139 A.L.R. 1276.
Law of sales and liability in respect thereof as applied to transactions in self-service stores, 163 A.L.R. 238.
Assignability of warranty of goods and chattels, 17 A.L.R.2d 1196.
Liability of auctioneer or clerk to buyer as to title, condition, or quality of property sold, 80 A.L.R.2d 1237.
Elements and measure of damages for breach of warranty in sale of horse, 91 A.L.R.3d 419.
Preemption of state law claim by federal copyright act - nature or type of claim asserted, 77 A.L.R.6th 543.