PJC Business

DTPA/I NSURANCE C ODE

PJC 102.9

575. The Committee expresses no opinion on whether the above definition should be used in nongoods cases. Affirmation merely of value of goods. A mere affirmation 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. Tex. UCC § 2.313(b). Superior knowledge. If the seller has knowledge superior to that of the con sumer, however, such an affirmation may create a warranty. Valley Datsun v. Martinez , 578 S.W.2d 485, 490 (Tex. App.—Corpus Christi–Edinburg 1979, no writ) (seller’s knowledge, in conjunction with buyer’s ignorance, operated to ‘‘make the slightest divergence from mere praise into representations of fact” and create warranty). In a case in which the issue is in dispute, the jury might be asked whether the defendant had such knowledge: Did Don Davis have, or purport to have, superior knowledge of the subject matter of any misrepresentation that you have found was a producing cause of Paul Payne ’s damages? Don Davis had superior knowledge of the subject matter if his knowledge or information regarding that subject matter was superior to that possessed by Paul Payne and Paul Payne did not have equal access to such knowledge or information. Don Davis purported to have superior knowledge if he had the appearance of having such knowledge or implied, professed out wardly, or claimed that he had such knowledge regarding a matter that was not equally open to Paul Payne . For discussions of the “superior knowledge” rule, see Italian Cowboy Partners, Ltd. v. Prudential Insurance Co. of America , 341 S.W.3d 323, 337–39 (Tex. 2011); Tren holm v. Ratcliff , 646 S.W.2d 927, 930 (Tex. 1983); and Valley Datsun , 578 S.W.2d at 490.

153