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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

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.
tacitusarc 6y ago
Thank you, this clarifies things. If I understand correctly, then, the requirement is that the average of a set of goods sold within a contract must be at least the quality specified by the contract. So it's not really talking about the average overall in a market of that good, it's talking specifically about the average quality of, say, a shipment of goods.
- throwaway8581 6y ago
  That's almost right.[1] I think an example might help explain the abstract statement in the UCC comments. Say you order a truckload of USDA Choice tenderloin. Meat quality is continuous, so really, USDA Choice refers to a range of quality; some Choice meat is on the lower end, almost Select, and some Choice meat is on the higher end, almost Prime. It would be a breach of the implied warranty of merchantability if the seller sent you a shipment of tenderloin that was all at the low end of the Choice range. Someone in the business of meat would balk at receiving such a shipment, so it wouldn't be the kind of shipment expected to "pass without objection". The quality should roughly center around the average of the designation (USDA Choice) specified in the contract. These are all default rules, like most of contract law. A particular contract can by its express terms lay down a different rule, such as disclaiming any warranty (as-is) or specifying its own terms of warranty (an express warranty). [1] What you described is just a straight-up breach of contract, even in the absence of a warranty. If you order USDA Choice meat, a shipment of USDA Select meat is such a breach of contract. In agriculture, and especially outside of meat, some of a shipment will always fall outside of the quality range. This is dealt with in the grading definition. So when you buy USDA Grade AA eggs, that actually means that at least 72% of the eggs are AA, and of the remaining, 10% are at least A and the balance can be B (basically... see https://www.ams.usda.gov/grades-standards/shell-egg-grades-and-standards https://www.ams.usda.gov/grades-standards/shell-egg-grades-a... ).

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.

tacitusarc 6y ago

Thank you, this clarifies things. If I understand correctly, then, the requirement is that the average of a set of goods sold within a contract must be at least the quality specified by the contract. So it's not really talking about the average overall in a market of that good, it's talking specifically about the average quality of, say, a shipment of goods.

throwaway8581 6y ago
That's almost right.[1] I think an example might help explain the abstract statement in the UCC comments. Say you order a truckload of USDA Choice tenderloin. Meat quality is continuous, so really, USDA Choice refers to a range of quality; some Choice meat is on the lower end, almost Select, and some Choice meat is on the higher end, almost Prime. It would be a breach of the implied warranty of merchantability if the seller sent you a shipment of tenderloin that was all at the low end of the Choice range. Someone in the business of meat would balk at receiving such a shipment, so it wouldn't be the kind of shipment expected to "pass without objection". The quality should roughly center around the average of the designation (USDA Choice) specified in the contract. These are all default rules, like most of contract law. A particular contract can by its express terms lay down a different rule, such as disclaiming any warranty (as-is) or specifying its own terms of warranty (an express warranty). [1] What you described is just a straight-up breach of contract, even in the absence of a warranty. If you order USDA Choice meat, a shipment of USDA Select meat is such a breach of contract. In agriculture, and especially outside of meat, some of a shipment will always fall outside of the quality range. This is dealt with in the grading definition. So when you buy USDA Grade AA eggs, that actually means that at least 72% of the eggs are AA, and of the remaining, 10% are at least A and the balance can be B (basically... see https://www.ams.usda.gov/grades-standards/shell-egg-grades-and-standards https://www.ams.usda.gov/grades-standards/shell-egg-grades-a... ).