Opinion

Wawak v. Stewart

  • 247 Ark. 1093
  • 449 S.W.2d 922
  • 1970 Ark. LEXIS 1398
Court
Supreme Court of Arkansas
Filed
Feb 2, 1970
Status
Published
Author
Byrd
On the bench
George Rose Smith
Cited by
57 cases

holding that "an implied warranty may be recognized in the sale of a new house by a sellér who was also the builder”

How later courts described this case

  • holding that "an implied warranty may be recognized in the sale of a new house by a sellér who was also the builder”
  • holding that “an implied warranty may be recognized in the sale of a new house by a seller who was also the builder”
  • improper installation of heating and air conditioning duct work causing rain to seep into house
  • change in case law regarding implied warranty for sale of house applied prospectively

Written by the judges who cited it.

The opinion

Conley Byrd, Justice, dissenting. I do not believe that the people of this State elected me to Legislate on the subject of implied warranties in the sale of real estate. The present Constitution of the State of Arkansas and also the proposed Constitution places such matters before the General Assembly and I think for good reason. When this matter comes before the General Assembly, interested parties, other than the parties to this litigation, with intimate knowledge of the problems involved in placing an implied warranty of fitness upon a house will have an opportunity to be heard. However, today’s decision will just as surely affect the method and cost of doing business of persons not a party to this litigation as would such action by the General Assembly, but our rules of procedure do not permit such parties to even be heard on a petition for rehearing.

The personal property warranties, including those involved in the purchase of a shoe string, have been the subject of much thought before legislation regulating the same was enacted, see Uniform Sales Act and the Uniform Commercial Code, Act 185 of 1961. Furthermore under the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-316 (3)(a) ( Add. 1961 ), even a- blind purchaser of a shoe string could not recover upon an implied warranty of fitness if he bought the shoe string under a contract stating that he was not relying upon any warranties made by the seller. Ark. Stat. Ann. § 85-2-316 provides:

“(2) ... Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’

“(3) Notwithstanding subsection (2)

“(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and

“(b) ...

“ (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.”

Therefore even if we applied the statutory warranty law applicable to personal property, the implied warranty which the majority here finds would be excluded not only by the language in the sales contract but also by the usage of trade under subsection (3)(e) of Section 85-2-316 of the Commercial Code.

For these reasons, I respectfully dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.