By Quenda Behler
Express warranties are written or verbal promises the builder
makes about the outcome of his work. For example, the
contractor might promise that a roof will last 15 years, that a
home office will be wired for modern technology, or that a lawn
will shed rainwater after it's sodded.
As the courts put it: An express warranty is a statement made
by a seller -- that's you, the builder -- whereby the seller
promises something specific about the goods or services
being sold. Typically, this type of promise has to do with how
well the thing you build functions.
Okay, but you talk to your customers a lot. At what point does
a conversation stop being just talk and become a promise your
customer can take to court? Well, customers can take you to
court anytime they want, but two things have to happen for them
to win a suit for breach of warranty. First, the court
has to be able to figure out what it was you promised. And
second, it has to determine that the client relied on that
For example, it doesn't mean much if you tell your customers
how wonderful their new media room will be or that it will be
the envy of all the neighbors. Such statements are just talk,
not specific enough to constitute an express warranty. But if
you tell your customers that the windows in the new media room
will never cause screen glare on their computers and
televisions, that is an express warranty.
Maybe you're thinking that these are actually contract
problems. Well, sometimes they are. But it's also possible for
something to be a contract problem and a warranty problem at
the same time. For example, maybe the contract for the media
room contained language stating that there would be no glare.
So if there were glare, the customer could sue you for breach
of contract or for breach of warranty.
Is that difference important? You betcha. In a breach of
contract lawsuit, the customer can win money only for certain
kinds of economic loss -- what it cost to fix what you didn't
do right, or what the diminished value of the job project is.
But in a breach of warranty lawsuit, the customer could collect
for noneconomic loss, which would include things like pain and
suffering. There's almost no limit to the kinds of loss a
plaintiff can recover for in a breach of warranty
Fortunately, there is the second part to this. Your customers
cannot successfully sue you for breach of warranty
unless they actually relied on what you said. It doesn't
matter what you said if your customers didn't rely on it.
For example, what if, after all the papers were signed, you
told your customers that they'd be able to resell their house
for half a million dollars? Would you be in trouble if the
house sold for only $400,000? No, because even if it was an
express warranty, the customers didn't rely on what you said.
They had already signed the papers and given you the go-ahead
before you started talking about possible resale value.
Getting Into Trouble
Suppose the express warranty you made was not in writing?
Express warranties are often written into the contract, but,
depending on your state law, they may not have to be in
writing. In most states, just because you never put your
promise into writing doesn't mean you can safely forget about
it. If you assured your customers that all the stone tiles you
were installing in the foyer were perfectly safe and would
never be slippery, and they are slippery, that's a breach of an
Of course, your customers will have to prove somehow that you
said that, and they will also have to prove that they relied on
what you said when they chose the tile. But if they have the
proof, the fact that your express warranty was not in writing
will not get you off the hook. In court, it sometimes comes
down to who is the most convincing witness, you or your
Clearly, it's possible to make express warranties without
meaning to do so. As another example, the words in your
advertising could create an express warranty. If your ad says
that you will replace the entire window if it ever leaks,
that's an express warranty. You might be able to fix the window
with caulk, but legally, you'd be required to replace it.
You can give your customers an express warranty by handing
them one of those manufacturer-supplied brochures that has an
express warranty in it. If they base a buying decision on the
brochure, they, in effect, have a warranty from the
manufacturer and a warranty from you.
It's also possible for someone else, such as your lead
carpenter or your subcontractor, to give the customer an
express warranty that is legally binding on you. Depending on
the situation, the people you hire may be considered your
Staying Out of Trouble
What can you do to protect yourself? Write into your contract
that the only express warranties you're making are the ones in
your contract documentation or warranties you made using
specific change order procedures.
Then enforce that change order procedure. Include some
specific language in your contracts, clearly stating that the
customer is limited to the manufacturer's express warranties
about the materials.
You could also write into the contract that if your client has
a problem with the work of a sub, he can only sue the sub, but
in most states, the courts will not recognize that type of
clause. It is possible in some states to further protect
yourself by writing into your contract that anyone suing you
for breach of warranty can collect only certain kinds of
damages, but again this is iffy.
Be very careful about the promises you make to your customers,
and be careful about conversations your employees may have with
Will doing all this make you bullet-proof? No, that's not
possible. But it will definitely shift the odds to your
side.has practiced and taught law for over 25
years and is the author of The Contractor's Plain-English Legal