PJC Business

PJC 102.10

DTPA/I NSURANCE C ODE

PJC 102.10 Implied Warranty of Merchantability—Goods (DTPA § 17.50(a)(2); Tex. UCC § 2.314(b)(3))

Furnishing goods that, because of a lack of something necessary for ade quacy, were not fit for the ordinary purposes for which such goods are used [ or ]

COMMENT When to use. PJC 102.10 may be used with PJC 102.8 to submit a cause of action for breach of an implied warranty of merchantability under Tex. Bus. & Com. Code §2.314(b)(3) (Tex. UCC). See also Tex. Bus. & Com. Code §17.50(a)(2) (DTPA); Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 444 (Tex. 1989). Use of “or.” If used with other instructions (see PJC 102.9 and 102.11–102.13), PJC 102.10 must be followed by the word or , because a finding of any one of the acts or practices defined in the instructions would support recovery under the DTPA. Caveat. Note that the above instruction is appropriate only for a case brought under Tex. UCC §2.314(b)(3). See Plas-Tex, Inc. , 772 S.W.2d at 444–45. Plas-Tex, Inc. defined “defect” as “a condition of the goods that renders them unfit for the ordi nary purposes for which they are used because of a lack of something necessary for adequacy.” Plas-Tex, Inc. , 772 S.W.2d at 444. For simplicity and clarity, the Commit tee has included only the definition itself in the above instruction. The Committee expresses no opinion about the above definition’s applicability if the evidence shows a presence , rather than a lack , of something that makes the goods unfit. Other elements of merchantability. For cases involving other elements of mer chantability, the instruction should be modified to delete the reference to “defect” and to include the relevant elements raised by the evidence. The elements are as follows: Furnishing fungible goods not of fair average quality within the description; Furnishing goods that did not run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; Furnishing goods that were not adequately contained, packaged, and labeled as the agreement required; Furnishing goods that did not conform to the promises or affirma tions of fact made on the container or label. Tex. UCC § 2.314(b)(2), (b)(4)–(6); see also Tex. UCC § 2.314(b)(1).

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