implied representation of merchantable quality accounts for Restatement formulation, whose “language is consistent only with something conceptually similar to an expectation by the consumer of merchantable quality. It is an expectation which is the result of the manufacturer’s or seller’s placing the article in the stream of commerce with the intention that it be purchased. This expectation is given legal sanction by the law through an assumption that the seller, by so placing the article in the stream of commerce, has represented that the article is not unreasonably dangerous if put to its intended use.”
How later courts described this case
- implied representation of merchantable quality accounts for Restatement formulation, whose “language is consistent only with something conceptually similar to an expectation by the consumer of merchantable quality. It is an expectation which is the result of the manufacturer’s or seller’s placing the article in the stream of commerce with the intention that it be purchased. This expectation is given legal sanction by the law through an assumption that the seller, by so placing the article in the stream of commerce, has represented that the article is not unreasonably dangerous if put to its intended use.”
- in UCC area one must distinguish contract from tort
Written by the judges who cited it.
The opinion
*293 DENECKE, J.,
dissenting,
I concur in the rationale for the decision of products liability cases stated by the majority.. I dissent, however, because I am of the opinion that the trial court was correct in grhnting defendant’s motion for a directed verdict.
This is a case in which it probably is the court’s function, rather than the jury’s, to decide whether the recapper and others in the chain impliedly represented that the used casing on the recap would perform as good as a new casing. I am using the distinction between the function of the court and jury in products liability cases proposed by Mr. Chief Justice O’Connell in his concurring opinion in Cornelius v. Bay Motors, 258 Or 564, 577 , 484 P2d 299 (1971):
“* * * This is the court’s function of looking at the general character of men’s dealings in the márket place and deciding whether, as a normal course of such dealings, it is ordinarily understood by sellers and buyers that .the seller represents, in effect, that he has inspected the car not only for patent defects but also defects which would be disclosed only by tearing down parts of the car in search for them.” 258 Or at 581 .
That opinion continues, “I do not think that this is the understanding of either buyer or seller in the usual sale of used cars.” 258 Or at 581 . Similarly, I do not think this is the understanding of the buyers or sellers of used tire casings.
Buyers of a recapped tire know they are getting a used casing. If buyers of recaps believe they will receive the same performance as they would from a new casing, why would anyone purchase new tires for which they must pay substantially more. I sup *294 posed the reason why recaps sold for substantially less than new tires was that the buyer did not expect the same performance from a recap.
In my opinion the law should be that a re-treader is liable for any defect in the casing that the retreader could have discovered by a reasonable inspection ; that is, liable for negligence, and no more.
That the retreader selected this casing for retreading only implies to me that the retreader found no defect. That the retreader put on tread which would last more than 6,000 miles implies that the re-treader, as well as the purchaser, expected that this tire, and most others, would perform for more than 6,000 miles. This, however, does not negate the expectation that inasmuch as used casings were retreaded, the incidents of failure will be substantially greater than with new tires.
We should attempt to apply § 402A of the Restatement (Second) of Torts so as to be consistent with the Uniform Commercial Code. Cornelius v. Bay Motors, supra ( 258 Or at 578 ). Comment 3 to ORS 72.3140, the Uniform Commercial Code section on implied warranties, states: “A contract for the sale of second-hand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.” I believe a warranty that a used tire casing does not have a latent defect is not “appropriate” to such goods.
If this is a case like Heaton v. Ford Motor Co., 248 Or 467 , 435 P2d 806 (1967), and it is normally a jury question whether this particular used casing performed as impliedly represented, I am also of the opinion that the trial court was correct. I interpret Heaton as holding that in a case such as this a jury *295 cannot pass on this question without some evidence to guide it. In the present case there was no evidence to guide the jury in determining what was impliedly represented in making the sale of the recap. With this void the issue should not have been permitted to go to the jury.