Torts: Misrepresentation vs. Express Warranty Forum

[punkyg0608]

Hey everyone,

I've searched all over and I can't find any difference between Misrepresentation and Express Warranty. If I'm not mistaken, the elements for both are:

1. commercial seller
2. misrepresentation of material fact
3. reliance on misrepresentation
4. harm to consumer

Am I missing something? There has to be some difference between these two torts, right? Thanks for any help you can offer, I appreciate it!

[rishabhagny]

From my notes I have some differences between the two:

Express Warranty
Allows recovery if the seller makes specific representations about the quality of the product and the buyer is injured due to the failure of the goods to fulfill those requirements.
-Limitations: only applies when specific misrepresentations were made by the buyer about the product.
-Example: "Ford sells a care and part of the contract guaranteed the windshield was shatterproof. It later shattered."

Misrepresentation
The plaintiff must show that the defendant made a misrepresentation about a fact material to the transaction and that the plaintiff acted in reliance on the misrepresentation and suffered injury because the product was not as represented by the seller.
-Plaintiff can recover even if the product is NOT defective - can recover as long as the product fails to live up to the misrepresentations that led to the injury.

The way I see it, and I may be wrong here, is that misrepresentation occurs and is actionable when the seller says something explicitly to the plaintiff, whereas breach of express warranty is a warranty that the seller has already attached to the product.

I'm not sure if that helps answer your question at all, but I'm gearing up for a Torts final as well..

[zomginternets]

Misrepresentation is a tort. Breach of express warranty is a contract-based cause of action.

Breach of express warranty never requires intent/fault/scienter. Intentional misrepresentation requires intent to decieve, and negligent misrepresentation requires that the seller should have known that the representation was false. "Innocent" misrepresentation (i.e. no-fault) requires a commercial seller, whereas breach of express warranty does not.

[punkyg0608]

Thanks for the help! I think I have a better idea of which is which now. But they both have pretty much the same elements right? That's why it's so confusing.