Consumer Law, Warranties Warranty of Merchantability and Fitness

[dirkman]

Hi, I'm new here.

I'm putting together an agreement, between manufacturer of pretzel product in Europe and myself in the US.

Is it normal to ask an overseas manufacture for a merchantability and fitness warranty, but manufacturer does not agree to include that kind of warranty, they say

"There are no other warranties, expressed or implied, including any warranty of merchantability, or fitness for a particular purpose."

Infact the manufacturer only guarantees the product to the EXW shipping point where the delivery takes place and I take title, although they do state in the contract that the product is made to high European standards and quality controls but because they no longer have any control over it after EXW point, especially since it goes by sea for 5 weeks. The quality by the way is very good.

So is it normal/common practice for them to decline a merchantability and fitness warranty, I guess I'm trying to look at if from their perspective as well, but still I have no ideas what the accepted standard in this type of contract is.

Thank you so much!

 

[army judge]

You shouldn't be doing this without the advice and assistance of counsel.
That said, no it isn't normal.
In fact, their reaction is somewhat suspect.
The product might not be up to US standards and controls.
Why would you want to import pretzels into the US anyway?
You might be getting into something that could be very costly.
The importation of food products into the US is very regimented and controlled.
Be careful, very careful.

By the way, what is the country of origin?




Sent from my iPhone using Tapatalk

 

[fredrikklaw]

U.C.C. Not Apply!

Both of these warranties are "implied" and as such are both unspoken and unwritten anywhere and to ask for them is not a normal business practice, especially of an overseas manufacturer. They are absolutely in the right for not indulging you in your request and their given reason is quite valid and pertinent.

Now, I personally commend your even tabling such a request and your desire for inclusion of evidence or proof-positive of these warranties as it shows you have the right (business) thinking cap on and are trying to both manage and minimize potential risks and pitfalls associated with such contracts; or any contract for that matter. But you need not bother on this occasion and with this manufacturer/producer.

Implied Warranties of Merchantabilities and Fitness for a Specific Purpose come under the U.C.C. (Uniform Commercial Code) flag which governs contracts containing sale of Goods; tangible items and merchandise so to speak, such cars, photocopiers, shovels, shoes, etc. and it does not extend to food items. Also, U.C.C. rules would have no bearing or authority over goods crossing the Atlantic.

In sum: You do not need these warranties to cover the food items you are about to import from Europe and food items are not given to such warranties anyways. Your concern here should be the ingredients and making sure that the product and packaging comply with F.D.A.'s labeling guidelines in regards to the Nutrition Value and Daily Intake, and so on.

Good Luck with your new venture and please have an attorney read over any contract before it is presented for signing.

fredrikklaw

 

[dirkman]

Fredricklaw thank you!

The labels are FDA approved with place of origin, manufacture, ingredients, etc. The manufacture has also already sold into US, and facility is FDA registered.

Another question would be. If the terms of sale are "EXW shipping point" then as I understand the company doesn't warranty anything right?

I tried to research extensively Implied Warranties of Merchantability and the information is very basic. For instance I haven't seen anywhere that it said it doesn't apply to foodstuffs or for things overseas in this case, I've come across some websites that had published their terms online; (some bakery websites that sell in and only in the US) and they put the "Implied Warranty of Merchantability and Fitness for a Specific Purpose" clause in them (the clause basically says it doesn't apply) perhaps it's because they don't know either, that's why I got confused since some of the samples I've seen have a cluause that says it doesn't apply.

Is there a source you can direct me where I could better educate myself with making such agreements with manufacturers overseas?

It seems like you know what you are talking about and I thank you.

 

[dirkman]

Army Judge, thanks for the cautions.

Because the USA market lacks in quality of safe product, and a pretzel made there has 5 natural ingredients instead of one produced in the US that has 45 ingredients.

 

[fredrikklaw]

Fitness For Human Consumption!?

Well, it is my pleasure and you are most welcome!

EXW is one of about thirteen (13) Terms of Sale which is short for Ex Works (named place) similar to F.O.B. Shipping Point and F.O.B. Destination. Since the named place is shipping point in your case, the seller will fulfill all obligations and responsibilities including any and all warranties only from his place of production to the shipping depot, from which point you will be responsible party. And if the terms indicate EXW (Buyer's Place or Destination), then the same would apply over a longer distance.

As for the Warranties; look at it this way. Residential leases (for example) have in them by default what is called an "Implied Warranty of Habitability and Covenant of Quiet Enjoyment" but you are never going to see one in ink. Because a landlord can vouch for the safety, quiet, and habitability of his own rental unit, but he cannot possibly vouch for the neighbors and everybody else in the neighborhood, AND, who knows what the tenant considers to be uninhabitable conditions or interference with his quiet enjoyment which someone else might not.

Here, you are asking the manufacturer to expressly warranty both the merchantability and fitness for a particular purpose for his product, where there are no such requirements. There is however, something called an "Implied Warranty of Fitness for Human Consumption" that applies to food or drink consumed on or off the premises of restaurants, grocery stores, fast food outlets, and vending machines.

Some states also apply a foreign substance test to determine whether food products are non-merchantable, but most states apply a consumer expectation test. Under this test, merchantability is based on what the average consumer would expect to find in food products. So what it comes down to basically is subjective judgment and reasoning call; hence what Tom might find to be a delectable treat, Derrick might find to be good as horse feed.

The best source I feel comfortable referring you to for a COMPLETE listing of all warranties including definitions and explicabilities, is http://www.ftc.gov/bcp/edu/pubs/business/adv/bus01.shtm where you should find the answers to all warranty-related questions.

Finally, whose labels appear on the package, yours or the manufacturer's, and is the FDA approved "facility" yours, or theirs?

fredrikklaw

 

[dirkman]

The labels are the factory's and will be afixed at the factory, but with our information on them. Labels conform to FDA requirement. Our facility is FDA registered, we had also registered their facility with the FDA. We've done a lot of work to get them ready to work with us.

It is all very logical, but because we are only wading in the waters it helps to have a logical perspective from another person and thank you for that golden link.

 

[dirkman]

fredriklaw,

When you mentioned above that UCC does not apply to products from overseas and furthermore to foodstuffs, therefore the warranties, expressed or implied, including any warranty of merchantability, or fitness for a particular purpose don't even apply for those reasons, could you refference that please?