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From: JimT on 9 Apr 2010 14:45 "Frank from Deeeetroit" <dadurweird(a)voyager.net> wrote in message news:cf0c892b-e4ee-4e35-953e-8fa1701d8f28(a)z7g2000yqb.googlegroups.com... On Apr 9, 1:57 pm, "Sanity" <jlee...(a)gmail.com> wrote: > "Jonathan Kamens" <j...(a)kamens.brookline.ma.us> wrote in message > > news:hpnpf8$h2h$2(a)jik3.kamens.brookline.ma.us... > > > > > > > Good golly, there are a lot of people commenting in this > > thread who don't seem to have a clue about how our legal > > system works but think they do anyway. > > > When a merchant sells you a product, there are implied > > warranties of merchantability and fitness for purpose. These > > warranties apply unless the merchant explicitly disclaims > > them. In some jurisdictions they cannot be disclaimed (i.e., > > the merchant is stuck with them whether he likes them or not). > > These warranties apply to the merchant who sells the product, > > *not* to the manufacturer. If the product is sold in a chain > > of transactions (e.g., manufacturer to distributor, > > distributor to merchant, merchant to consumer), there are > > implied warranties at each link in the chain between the two > > parties to that particular transaction. > > > Merchantability applies here because the product failed when > > used as intended and in accordance with its published > > instructions. > > > Fitness for purpose applies here because the product's > > instructions claimed that it would perform adequately and it > > did not, and because the purchaser asked the merchant > > specifically if it would perform as desired and was told by a > > representative of the merchant (i.e., the Lowe's associate) > > that it would. > > > The OP does not have a contract with the manufacturer of the > > product, because he did not buy the product from the > > manufacturer. The OP has a contract with Lowe's, because he > > bought the product from Lowe's, and therefore the implied > > warranties at the OP's disposal for recouping damages for his > > loss are with Lowe's not with the manufacturer. > > > If, indeed, the manufacturer of the product was negligent in > > selling a product which they claimed would be safe for > > concrete when used in certain conditions and which was not in > > fact safe for concrete when used in those conditions, then > > the OP could have a claim against the manufacturer for > > negligence, independent of the implied warranties between > > Lowe's and the OP. > > > In short, if the facts are as presented by the OP (i.e., his > > concrete was old enough and sealed properly, the product said > > it was safe to use on concrete that was old enough and sealed > > properly, and yet the concrete flaked when the product was > > used on it), then he can certainly sue Lowe's for damages > > based on the implied warranties of merchantability and > > fitness for purpose, and he can also, should he wish to do > > so, sue the manufacturer for negligence. > > > It appears from the information provided by the OP that Lowe's > > has its own contract with the manufacturer which allows Lowe's > > to force the manufacturer to cover any claims for damages > > arising from its products sold by Lowe's. That's all well and > > good for Lowe's, but it has nothing to do with the OP, who is > > not a party to that contract. It is not the OP's concern > > whether Lowe's can or does successfully collect reimbursement > > from the manufacturer for whatever damages Lowe's pays out to > > the OP, and the contact between Lowe's and the manufacturer > > cannot be used as the basis of a lawsuit initiated by the OP > > against either Lowe's or the manufacturer. Frankly, I'm not > > sure why Lowe's showed it to the OP; it just muddied the > > waters. > > > Seehttp://en.wikipedia.org/wiki/Implied_warrantyfor more > > information about implied warranties. > > Thank you for the most intelligent reply I have received to date. I was > trying to convey your message but not as eloquently as you did.- Hide > quoted text - > > - Show quoted text - Johnathon's post was well said and will be used by Lowe's on their side of the argument. On your side of the argument, you will have to prove the concrete is of suffecient quality in the first place and was poured correctly and floated correctly, in the correct weather conditions, should this case go in front of a judge. Considering your back-ground, these are the main causes of concrete flaking. My guess, Lowe's will offer you some money or products to end the case. Keep us posted, should be interesting, and good luck. ---------------------------- From: http://en.wikipedia.org/wiki/Implied_warranty "The warranty of fitness for a particular purpose is implied when a buyer relies upon the seller to select the goods to fit a specific request. For example, this warranty is violated when a buyer asks a mechanic to provide snow tires and receives tires that are unsafe to use in snow. This implied warranty can also be expressly "disclaimed by name", thereby shifting the risk of unfitness back to the buyer." Anyone want to tackle "expressly disclamed by name"? Jonathan? :-) Jim
From: Jonathan Kamens on 9 Apr 2010 15:12 "JimT" <jthread(a)toast.net> writes: >Anyone want to tackle "expressly disclamed by name"? Jonathan? :-) Nothing we have been told in this thread suggests that Lowe's disclaimed the warranty of fitness for purpose when selling the product to the OP. On the contrary, the OP specifically asked a Lowe's associate if the product would perform similarly to similar products sold by Lowe's in prior years, and the associate told him that it would. That statement by the associate to the OP prior to purpose established a warranty of fitness for purpose. If you have some reason to believe, based on the information we have been provided, that Lowe's disclaimed said warranty, then please fully explain your reasoning. If you don't, then please stop being one of the people posting in this thread who is acting like he has a clue but actually doesn't. Thanks.
From: JimT on 9 Apr 2010 15:24 "Jonathan Kamens" <jik(a)kamens.brookline.ma.us> wrote in message news:hpnu6h$h2h$3(a)jik3.kamens.brookline.ma.us... > "JimT" <jthread(a)toast.net> writes: >>Anyone want to tackle "expressly disclamed by name"? Jonathan? :-) > > Nothing we have been told in this thread suggests that Lowe's > disclaimed the warranty of fitness for purpose when selling > the product to the OP. > > On the contrary, the OP specifically asked a Lowe's associate > if the product would perform similarly to similar products > sold by Lowe's in prior years, and the associate told him that > it would. That statement by the associate to the OP prior to > purpose established a warranty of fitness for purpose. > > If you have some reason to believe, based on the information > we have been provided, that Lowe's disclaimed said warranty, > then please fully explain your reasoning. > > If you don't, then please stop being one of the people posting > in this thread who is acting like he has a clue but actually > doesn't. Thanks. Wow...chill dude. I was just curious. You know you can ignore posts. Sheeeze! BTW: I'll post when, what and wherever I want.
From: Frank from Deeeetroit on 9 Apr 2010 18:44 On Apr 9, 3:12 pm, j...(a)kamens.brookline.ma.us (Jonathan Kamens) wrote: > "JimT" <jthr...(a)toast.net> writes: > >Anyone want to tackle "expressly disclamed by name"? Jonathan? :-) > > Nothing we have been told in this thread suggests that Lowe's > disclaimed the warranty of fitness for purpose when selling > the product to the OP. > > On the contrary, the OP specifically asked a Lowe's associate > if the product would perform similarly to similar products > sold by Lowe's in prior years, and the associate told him that > it would. That statement by the associate to the OP prior to > purpose established a warranty of fitness for purpose. You are assuming the associate, in fact said that, and if the OP can prove said associate said that. > > If you have some reason to believe, based on the information > we have been provided, that Lowe's disclaimed said warranty, > then please fully explain your reasoning. > > If you don't, then please stop being one of the people posting > in this thread who is acting like he has a clue but actually > doesn't. Thanks.
From: JimT on 9 Apr 2010 19:55
<snip> I've met a lot of people in ngs. Some people know how to use them and others don't. I consistently get great advice. And even when I don't, sometimes this is a good place to think things through. Don't let it get under your skin. Yes, there is an abundance of really bad advice. But it's usually pretty obvious. Above all: Telling people what to do in ngs is usually a waste of time because you don't own them and you don't even own this thread. I've started many a threads that I left behind because it got off the track or I just didn't find it interesting. See, even though you've been a bit grouchy, I don't mind. It's all fair here. If I don't like it I can leave. And so can you. :-) <-----this means all is well and don't sweat it. If you don't like it. Move on. :-) |