Concrete Pavement Progress www.acpa.org 22 C O N S T R U C T I O N L A W 1. Unless excluded or modified (Section 2-316), 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 (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. Third, if the seller knows of the purpose of the materials, §2-315 creates an implied warranty of fitness for a particular purpose: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. With the above warranties, you have a starting place if the materials you purchased are rejected by the engineer or owner, even if you failed to have a contract in place incorporating the general contract requirements into the material supply agreement. You should be aware that the warranties may be altered by the contract. Language such “as is,” “with all faults” or others must be conspicuously written in order to waive. Make sure that you are reviewing the quotations provided, and if that language is included request it to be removed. The above are avenues you can take when things go wrong and you have not required your material suppliers to sign a supply contract.They are a starting place only, and you will need to consult with an attorney to determine the applicability to your specific fact pattern. And, we encourage all of our clients to make the above moot by having a supply agreement in place that has been specifically prepared with the complexities of construction in mind. While it may feel comforting to have the UCC as a safeguard, nothing tops a well-written contract. » continued from page 21 Thomas Olson is the founding partner of Olson Construction Law. Tom’s commitment is to provide guidance on how to resolve issues on the jobsite, not in the courtroom. Tom has worked on highway heavy projects throughout much of the United States for more than thirty years. A prolific speaker and writer as well as attorney, his expertise is in concrete and asphalt paving, utility, earthwork and bridge construction, schedule analysis, material testing, and the technical and legal obligations of both engineers and contractors. Rielly Lund is a committed advocate for contractors, with the ability to quickly and accurately analyze a client’s issue within the parameters of each specific contract. Rielly works with contractors through all stages of construction, from bidding to acceptance, with the goal of minimizing risk and maximizing profits for contractors. With this in mind, Rielly enjoys discussing various contractual requirements with contractors before issues arise, so they are best able to meet any challenges head on. ABOUT THE AUTHORS
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