Argue that a buyer gave timely notice of breach and that a disclaimer does not bar its warranty claim. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Stephen Amoako, Partner. Re: Farrow Bakery v. Delta Ovens. Our client, Farrow Bakery, bought an industrial oven from Delta Ovens that failed after four months, and Delta has moved for summary judgment saying Farrow gave late notice and that the sale contract disclaimed all warranties. Please draft the Argument section of our opposition. Argue that Farrow gave notice within a reasonable time and that the disclaimer is ineffective. Use only the Library and do not include a statement of facts.
File
Client interview
Farrow bought the oven in March for $38,000. The oven's heating element failed on July 11. Farrow's manager, Ines Ortega, phoned Delta's service line on July 12 and reported that the oven would not heat and that Delta had promised the unit would hold temperature 'for at least five years.' A Delta technician visited on July 20 and left. Farrow sent a written complaint on September 2. The sales contract, signed by Ms. Ortega, contained a sentence in the middle of a dense page reading, in normal size type, 'Seller disclaims all warranties.' The written proposal that Delta had given Farrow earlier said the oven 'maintains temperature for five years.'
Delta's motion (excerpt)
Notice was given on September 2, well beyond a reasonable time. The contract disclaims all warranties.
Library
Commercial Code, section 2-607 (Franklin)
A buyer who has accepted goods must, within a reasonable time after discovering a breach, notify the seller of the breach or be barred from any remedy. Notice need not be in writing and need only inform the seller that the transaction is troublesome.
Commercial Code, section 2-316 (Franklin)
A seller's words creating an express warranty and words that disclaim it are read as consistent if possible, but a disclaimer is inoperative to the extent it is unreasonable in relation to the express warranty. To exclude an implied warranty of merchantability, the language must mention merchantability and, if written, must be conspicuous. A general disclaimer does not bar an express warranty.
A bakery called an equipment seller after its mixer failed and said it was defective, and later sent a written complaint. Held: the telephone call was sufficient notice, because it told the seller the transaction was troublesome. A written notice later is not needed. What is a reasonable time depends on the circumstances, and a commercial buyer's prompt call is enough.
A seller's brochure said a machine 'will run without repair for ten years.' The contract stated 'no warranties.' Held: the express promise controls. Words in the contract cannot take away an express warranty made in the seller's earlier statements and relied on by the buyer, because a disclaimer that contradicts the seller's own express promise is inoperative.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Uses complete-sentence point headings and no statement of facts
Applies section 2-607 and argues Farrow's July 12 call was notice
Applies Lindqvist that a call is sufficient and that the September letter was not required
Argues the notice came the day after the failure and was reasonable
Argues Delta's five-year statement created an express warranty
Applies section 2-316 that a general disclaimer does not bar an express warranty
Applies Pruitt to say the disclaimer is inoperative against the earlier promise
Answers that the disclaimer was not conspicuous or did not mention merchantability for the implied warranty