There was no DD for January 1, a holiday which the Editor celebrated at the Rose Parade

Daily Development for Tuesday, January 29, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

CONSTRUCTION; BUILDER'S LIABILITY; IMPLIED WARRANTY OF HABITABILITY: Provision in contract making express warranties as to materials and workmanship does not preclude implication of general warranty of quality.

Bullington v. Palangio, 43 SW3d 834 (Ark. 2001)

Builder contracted to build a house for Owner. The contract contained a one year express warranty for workmanship and materials beyond normal wear and tear, and further stated that "the contractor will expedite work in a timely manner without sacrificing quality. Quality will not be sacrificed under any circumstances."

Upon completion of the house, Owner moved in an found that she was not satisfied with the quality. She complained to Builder, but got no satisfaction. More than a year after accepting the house, Owner got another builder to make the desired repairs and filed suit against Builder, alleging a breach of the implied warranty of habitability in new home construction.

The trial court found for Owner, and Builder appealed on the grounds that it was error to instruct the jury on implied warranties when the contract contained an express warranty. Builder argued that Arkansas precedent established that an express warranty is a waiver of any implied warranty.

The Arkansas Supreme Court acknowledged that precedent provided that where a contract provided an express warranty on a given subject, any implied warranty as to that subject is waived.

The court also said, however, that Arkansas law includes in any construction contract an implied warranty of habitability, sound workmanship and proper construction. The express warranties in the instant contract dealt only with workmanship and materials, and, according to the court, not with habitability and proper construction. The existence of the limited express warranty did not operate as a waiver of these broader implied warranties. To that, the builder would have had to include express waivers of those warranties, such as (in the court's words) an "as is" clause.

Comment: The court told us nothing of the deficiencies alleged by the buyer in this case, and why they might have breached a warranty of "sound construction" but would not simultaneously have breaded a warranty of good workmanship. Perhaps other Arkansas precedent supplies an answer to this, and perhaps the jury was easily able to differentiate. But perhaps not.

In any event, it appears that the notion that express warranties preclude implied ones is a very slender reed for builders to rely upon. Builders should (and probably do) include language expressly stating that the warranties set forth in the agreement or in lieu of any others, express or implied, and that, in exchange for the express warranties, buyer waives any claim that any other warranties have been implied. Would such language really be all that difficult to sell to buyers? It's certainly worth trying.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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