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> The implied warranty of “merchantability” under UCC section 2-314 is a promise that “the goods”—the Software—are of at least average quality, properly package

> The implied warranty of “merchantability” under UCC section 2-314 is a promise that “the goods”—the Software—are of at least average quality, properly packaged and labeled, and fit for the ordinary purposes they are intended to serve. So, all goods have an implied warranty requiring they must be of at least average quality? How does that work? Does average have a different meeting in a legal context?

martincmartin 6y ago
Suppose I sell you an oil filter for your 2019 Mazda. When you get it home, you realize there's a big hole in it, and it can't be used to replace the one currently on your car. You call me up and I say "I never said it would work in a car, I just said it was an oil filter (true) which would fit into a 2019 Mazda (true)." The law says "nice try, you can't be that pedantic. The ordinary purpose of oil filters it to actually filter oil in a car, so when you sold it, there was an understanding that it would work for that purpose."
- fogof 6y ago
  What if the oil filter doesn't have a hole in it, but just has 10,000 miles on it so it doesn't work well anymore. Would selling that be ok? What about a filter with 9,000 miles, or 5,000 miles, or 1,000 miles? Who decides what the cutoff is?
  - detaro 6y ago
    > Who decides what the cutoff is? ultimately, a judge.
    - owenmarshall 6y ago
      This is where technical people hit a wall with the law. Many legal systems, especially the American one, aren’t based on strict enumerable lists of what my lawyer friends would call “bright line tests”. This is probably a good thing, all in all.
      - mytailorisrich 6y ago
        That's because the world is too complex and nuanced for such strict cutoffs to be stipulated in law. Just the number of products on the market is huge and changes all the time. The law therefore specifies things in general terms and uses 'reasonableness', or "fitness for purpose", or what would be expected by an "average bystander" (in English law), etc. in the same way this piece of legislation does. This allows courts and juries to then make a judgement on the infinite number of particular cases that get before them.
      - danaliv 6y ago
        Indeed. And things don’t go to court if they’re obvious. The whole point of going to court is to resolve conflicts that don’t have obvious answers. (Or where the more powerful party is being stubbornly wrong, but that’s a separate issue.)
      - travisjungroth 6y ago
        I have had this discussion (argument) with so many software engineers and pilots who think they found a loophole. If someone in power thinks you broke the law, you don’t have to explain yourself to a law interpreter. It’s a human being on the other side of that table. And they can be just as clever and capricious as you. Most bodies of law also have a catch-all (I like to call it “fuck you”) clause to cover whatever shenanigans you try that they haven’t yet enumerated. 14 CFR 91.13 comes to mind. Also, check out my new cryptocurrency that skirts all SEC laws. http://orangegrovecoin.com http://orangegrovecoin.com
- dataflow 6y ago
  Your example doesn't highlight something important about this though: they explicitly disclaim the "implied" warranty of merchantability in addition to disclaiming all warranties in general. In other words, that means that in your example, you hadn't merely declined to say it works in a car, but you had in fact already said "I guarantee NOTHING about this oil filter; it comes with absolutely NO WARRANTIES", and yet someone would've still called you up and said "despite all your disclaimers you still have an implied warranty because you didn't disclaim it explicitly"... which is far less obvious than what you wrote.
  - corty 6y ago
    I think it is quite obvious. "I guarantee NOTHING about this oil filter" still claims that it is an oil filter. Not just a mostly oil-filter-similar object.
    - dataflow 6y ago
      "I guarantee NOTHING about this software" still implies it is software... so what?
torstenvl 6y ago
Average has exactly the meaning it has in all other contexts. It seems to be a bizarrely common (and obviously incorrect) meme on HN that half of all elements of a set are below average.
- lanna 6y ago
  GP comment did not imply that half of elements are below average. It just said that _some_ have to be. By definition, we cannot have all elements be above average: at least one has to be below.
  - torstenvl 6y ago
    The average (median, mode, rounded mean) package of a dozen eggs contains 12 yolks. Occasionally there are 13 or even 14. Some packages intentionally contain 24. Vanishingly few if any contain 11 or fewer yolks.
    - lanna 6y ago
      With all due respect, you are just trying really hard to be pedantic. Your convoluted, contorted, corner-case example does not invalidate anything that was said here. You even had to resort to the word "rounded" to make it work. Without "rounded", most would be below mean.
      - betenoire 6y ago
        > at least one has to be below (average) this is the pedantic part. Normal usage of average means "pretty much what I expected", which is what they are trying to convey, imo.
        tacitusarc 6y ago
        I think normally usage, that is non mathematical usage, doesn't mean what I expected, it means the middle of available options, or perhaps the most common option. When applied to quality one would expect that means there is low quality, average quality, and high quality. So I seriously don't know what this means in a legal context.
throwaway8581 6y ago
The article doesn't really get it right. This is what the UCC actually says: (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. Here is what the official comments to the UCC say: Paragraphs (a) and (b) of subsection (2) are to be read together. Both refer, as indicated above, to the standards of that line of the trade which fits the transaction and the seller's business. “Fair average” is a term directly appropriate to agricultural bulk products and means goods centering around the middle belt of quality, not the least or the worst that can be understood in the particular trade by the designation, but such as can pass “without objection.” Of course a fair percentage of the least is permissible but the goods are not “fair average” if they are all of the least or worst quality possible under the description. In cases of doubt as to what quality is intended, the price at which a merchant closes a contract is an excellent index of the nature and scope of his obligation under the present section. So if you understand (a) and (b) in unison, it means that you can't sell someone a lot of goods but then send them all below-average quality units. But, of course, a truck load of apples can still have a "fair percentage" of low-quality apples. Where you're selling a single item, like a computer, then (a) is the better lens of looking at it. None of this is legal advice. I'm not your lawyer.
- kemitchell 6y ago
  I paraphrased, because I don't think the nuances matter that much in context. The subject is a broad disclaimer of implied warranties, after all. Quoting the UCC and commentaries would only distract the reader and make the post longer.
  - throwaway8581 6y ago
    In this case, I think it'd be better to leave the "average" language out of it altogether. It doesn't really capture any useful intuitive notion for the reader and instead engenders misunderstanding, as shown by this thread.
danaliv 6y ago
We’re in English class, not math class. Forget statistics. There is a sense of the word “average” that means “not out of the ordinary; common.” That’s the sense meant here.

martincmartin 6y ago

Suppose I sell you an oil filter for your 2019 Mazda. When you get it home, you realize there's a big hole in it, and it can't be used to replace the one currently on your car. You call me up and I say "I never said it would work in a car, I just said it was an oil filter (true) which would fit into a 2019 Mazda (true)." The law says "nice try, you can't be that pedantic. The ordinary purpose of oil filters it to actually filter oil in a car, so when you sold it, there was an understanding that it would work for that purpose."

fogof 6y ago
What if the oil filter doesn't have a hole in it, but just has 10,000 miles on it so it doesn't work well anymore. Would selling that be ok? What about a filter with 9,000 miles, or 5,000 miles, or 1,000 miles? Who decides what the cutoff is?
- detaro 6y ago
  > Who decides what the cutoff is? ultimately, a judge.
  - owenmarshall 6y ago
    This is where technical people hit a wall with the law. Many legal systems, especially the American one, aren’t based on strict enumerable lists of what my lawyer friends would call “bright line tests”. This is probably a good thing, all in all.
    - mytailorisrich 6y ago
      That's because the world is too complex and nuanced for such strict cutoffs to be stipulated in law. Just the number of products on the market is huge and changes all the time. The law therefore specifies things in general terms and uses 'reasonableness', or "fitness for purpose", or what would be expected by an "average bystander" (in English law), etc. in the same way this piece of legislation does. This allows courts and juries to then make a judgement on the infinite number of particular cases that get before them.
    - danaliv 6y ago
      Indeed. And things don’t go to court if they’re obvious. The whole point of going to court is to resolve conflicts that don’t have obvious answers. (Or where the more powerful party is being stubbornly wrong, but that’s a separate issue.)
    - travisjungroth 6y ago
      I have had this discussion (argument) with so many software engineers and pilots who think they found a loophole. If someone in power thinks you broke the law, you don’t have to explain yourself to a law interpreter. It’s a human being on the other side of that table. And they can be just as clever and capricious as you. Most bodies of law also have a catch-all (I like to call it “fuck you”) clause to cover whatever shenanigans you try that they haven’t yet enumerated. 14 CFR 91.13 comes to mind. Also, check out my new cryptocurrency that skirts all SEC laws. http://orangegrovecoin.com http://orangegrovecoin.com
dataflow 6y ago
Your example doesn't highlight something important about this though: they explicitly disclaim the "implied" warranty of merchantability in addition to disclaiming all warranties in general. In other words, that means that in your example, you hadn't merely declined to say it works in a car, but you had in fact already said "I guarantee NOTHING about this oil filter; it comes with absolutely NO WARRANTIES", and yet someone would've still called you up and said "despite all your disclaimers you still have an implied warranty because you didn't disclaim it explicitly"... which is far less obvious than what you wrote.
- corty 6y ago
  I think it is quite obvious. "I guarantee NOTHING about this oil filter" still claims that it is an oil filter. Not just a mostly oil-filter-similar object.
  - dataflow 6y ago
    "I guarantee NOTHING about this software" still implies it is software... so what?

torstenvl 6y ago

Average has exactly the meaning it has in all other contexts. It seems to be a bizarrely common (and obviously incorrect) meme on HN that half of all elements of a set are below average.

lanna 6y ago
GP comment did not imply that half of elements are below average. It just said that _some_ have to be. By definition, we cannot have all elements be above average: at least one has to be below.
- torstenvl 6y ago
  The average (median, mode, rounded mean) package of a dozen eggs contains 12 yolks. Occasionally there are 13 or even 14. Some packages intentionally contain 24. Vanishingly few if any contain 11 or fewer yolks.
  - lanna 6y ago
    With all due respect, you are just trying really hard to be pedantic. Your convoluted, contorted, corner-case example does not invalidate anything that was said here. You even had to resort to the word "rounded" to make it work. Without "rounded", most would be below mean.
    - betenoire 6y ago
      > at least one has to be below (average) this is the pedantic part. Normal usage of average means "pretty much what I expected", which is what they are trying to convey, imo.
      - tacitusarc 6y ago
        I think normally usage, that is non mathematical usage, doesn't mean what I expected, it means the middle of available options, or perhaps the most common option. When applied to quality one would expect that means there is low quality, average quality, and high quality. So I seriously don't know what this means in a legal context.

throwaway8581 6y ago

The article doesn't really get it right. This is what the UCC actually says: (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. Here is what the official comments to the UCC say: Paragraphs (a) and (b) of subsection (2) are to be read together. Both refer, as indicated above, to the standards of that line of the trade which fits the transaction and the seller's business. “Fair average” is a term directly appropriate to agricultural bulk products and means goods centering around the middle belt of quality, not the least or the worst that can be understood in the particular trade by the designation, but such as can pass “without objection.” Of course a fair percentage of the least is permissible but the goods are not “fair average” if they are all of the least or worst quality possible under the description. In cases of doubt as to what quality is intended, the price at which a merchant closes a contract is an excellent index of the nature and scope of his obligation under the present section. So if you understand (a) and (b) in unison, it means that you can't sell someone a lot of goods but then send them all below-average quality units. But, of course, a truck load of apples can still have a "fair percentage" of low-quality apples. Where you're selling a single item, like a computer, then (a) is the better lens of looking at it. None of this is legal advice. I'm not your lawyer.

kemitchell 6y ago
I paraphrased, because I don't think the nuances matter that much in context. The subject is a broad disclaimer of implied warranties, after all. Quoting the UCC and commentaries would only distract the reader and make the post longer.
- throwaway8581 6y ago
  In this case, I think it'd be better to leave the "average" language out of it altogether. It doesn't really capture any useful intuitive notion for the reader and instead engenders misunderstanding, as shown by this thread.

danaliv 6y ago

We’re in English class, not math class. Forget statistics. There is a sense of the word “average” that means “not out of the ordinary; common.” That’s the sense meant here.