Warranties Under the UCC and Texas Contract Law? Fort Worth Contracts Lawyers Can Help

For Texas small business owners, understanding and managing warranties is complex, making the engagement of outside corporate counsel a strategic necessity rather than a luxury. An external attorney acts as a proactive advisor who can review sales literature, website descriptions, and standard contract forms to ensure they do not accidentally create unintended warranties while simultaneously ensuring necessary warranties are properly disclaimed. Without this professional guidance, businesses risk strict liability for product failure, which could lead to costly litigation and reputational damage. An express warranty is created by any affirmation of fact or a promise made by a seller to a buyer that is a part of the basis of the bargain. In addition, an express warranty may be created by a description, model, or sample of the goods. A seller breaches an express warranty when the goods fail to “conform to a promise or an affirmation of fact . . . , or the goods do not conform to a description, sample, or model . . . .” Herring v. Home Depot, Inc., 565 S.E.2d 773, 776 (S.C. Ct. App. 2002) (holding that an aggrieved buyer must also establish that the breach caused the damages for which it seeks to recover); see also Yurcic v. Purdue Pharma, L.P., 343 F. Supp. 2d 386, 394 (M.D. Pa. 2004) (holding that to prevail on breach of express warranty claim, a buyer must establish the existence of a warranty, a breach of warranty, and damages proximately caused by the breach)

“Whether an express or implied warranty has been breached is included in the revocation determination only in the sense that a breach of a warranty could substantially impair the value of the goods to the buyer.”. 139 See U.C.C. § 2-106(2). It is not necessary to use words like “warranty” or “guarantee” to create express warranties in a contract in Texas.   Also, statements of opinion rather than fact , which are called “puffery”, do not create express warranties under Texas law.

TEX BC. CODE ANN. § 2.313 : (a) Express warranties by the seller are created as follows: (1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.(b) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.

Under the Uniform Commercial Code (UCC) as adopted in Texas, express warranties are created when a seller makes specific promises, affirmations of fact, descriptions, or provides samples of goods that become part of the basis of the bargain. Unlike implied warranties, these are explicitly created by the seller's own words or actions, meaning that a seller can accidentally create a warranty by describing a product as "waterproof" or "grade-A" during negotiations. Texas law does not require the use of formal words like "warrant" or "guarantee" for these to be enforceable, though simple "puffery" or sales puffing, which are exaggerated, subjective opinions about quality, generally do not qualify as binding express warranties. It is not necessary to use words like ‘warranty’ or ‘guarantee’ to create express warranties in a contract in Texas.

Beyond warranty management, hiring outside general counsel provides small businesses with access to high-level expertise on a flexible, as-needed basis, avoiding the high overhead costs of full-time in-house legal staff. These attorneys bring an objective, third-party perspective to contract negotiations, intellectual property protection, and employment compliance, helping to prevent, rather than react to, legal crises. By fostering a long-term relationship, they learn the specific risks of your industry, ensuring your business stays compliant with shifting Texas regulations while freeing you to focus on growth.

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