402.314 Implied warranty: merchantability; usage of trade.

(1) Unless excluded or modified (s. 402.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as:

(a) Pass without objection in the trade under the contract description; and

(b) In the case of fungible goods, are of fair average quality within the description; and

(c) Are fit for the ordinary purposes for which such goods are used; and

(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) Are adequately contained, packaged, and labeled as the agreement may require; and

(f) Conform to the promises or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (s. 402.316) other implied warranties may arise from course of dealing or usage of trade.

An unincorporated organization of band mothers who sold food at a fund-raising luncheon were not merchants as contemplated by sub. (1). Samson v. Riesing, 62 Wis. 2d 698, 215 N.W.2d 662 (1974).

Evidence that the goods break or physically deteriorate after delivery may be relevant to whether the goods were fit at the time of delivery for the ordinary purpose for which they are used; but consideration of that evidence for that purpose does not impose an express warranty for future performance. City of Stoughton v. Thomasson Lumber Company, 2004 WI App 6, 269 Wis. 2d 339, 675 N.W.2d 487, 02-2192.

A party may sue for breach of implied warranties under the UCC although it does not take possession of the goods if it is the party who contracts to buy the goods. Estate of Kriefall v. Sizzler USA Franchise, Inc. 2011 WI App 101, 335 Wis. 2d 151, 801 N.W.2d 781, 09-1212.

When circumstances rendered a breach of good faith and of a fiduciary obligation chargeable to the buyer, the buyer was barred from asserting causes based on a breach of the warranty of merchantability, or on the seller's claimed fault, to recover from the seller that portion of the claim disallowed, with the buyer's consent, by the shipper. Greisler Brothers, Inc. v. Packerland Packing Co., Inc. 392 F. Supp. 206 (1975).

Status of products liability in Wisconsin. Coyne, 43 WBB, No. 4.