ORS 72.3140¹
Implied warranty: merchantability
  • usage of trade

(1) Unless excluded or modified as provided in ORS 72.3160 (Exclusion or modification of warranties), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(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.

(3) Unless excluded or modified as provided in ORS 72.3160 (Exclusion or modification of warranties) other implied warranties may arise from course of dealing or usage of trade. [1961 c.726 §72.3140 (Implied warranty: merchantability)]

Notes of Decisions

A municipal corpora­tion engaged in the business of supplying wa­ter to its inhabitants is engaged in an undertaking of a private nature and is generally liable therein for breach of contract or for negligence as a private corpora­tion would be, but is not subject to an implied warranty of merchantability. Coast Laundry, Inc. v. Lincoln City, 9 Or App 521, 497 P2d 1224 (1972)

The seller was shown to have breached implied warranties of merchantability and fitness for a particular purpose. Valley Iron and Steel Co. v. Thorin, 278 Or 103, 562 P2d 1212 (1977)

In products liability ac­tion against manufacturer, where defective product was purchased from manufacturer's distributor rather than from manufacturer itself, there was no "privity of contract" and thus implied warranty of merchantability was not applicable to transac­tion. Davis v. Homasote Company, 281 Or 383, 574 P2d 1116 (1978)

Evidence, inter alia, that buyer gave no specifica­tions for electronic control unit, that buyer relied upon seller's skill and judg­ment in its design and manufacture unit, and that buyer's inspec­tion did not reveal latent defects, was sufficient to es­tab­lish existence of implied warranty of fitness for particular purpose. Controltek, Inc. v. Kwikee Enterprises, Inc., 284 Or 123, 585 P2d 670 (1978)

Reliance is not necessary ele­ment of implied warranty of merchantability. B.W. Feed v. General Equip­ment Co., 44 Or App 285, 605 P2d 1205 (1980)

Law Review Cita­tions

11 WLJ 12, 21-35 (1974); 28 WLR 565 (1992)

Chapter 72

Law Review Cita­tions

53 OLR 468-473 (1974); 58 OLR 545 (1980)

1 Legislative Counsel Committee, CHAPTER 72—Sales, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors72.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 72, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­072ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information