Supp. To § 1.14 Promise and Warranty

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(A) The following case cited the predecessor to this section:

(1) Columbia Propane, L.P. v. Wis. Gas Co., 640 N.W.2d 819 (Wis. App. 2001) . People's Gas, now defunct, operated a coal gas plant that contaminated the soil and groundwater on the southern portion of its real estate. The plaintiff purchased the northern portion of the real estate from People's, and the contaminants from the southern portion entered the northern portion prior to 1960. In 1960, the defendant acquired the southern portion from People's under an asset purchase agreement that included ''then outstanding liabilities.'' In 1962, the plaintiff purchased the southern portion from the defendant, making the plaintiff the owner of the entire parcel of real estate. The State of Wisconsin brought an action against the plaintiff for the contamination caused by People's. The plaintiff sought reimbursement from the defendant contending that the defendant had assumed all liabilities of People's under the 1960 asset purchase agreement. The plaintiff argued for an interpretation of ''then outstanding liabilities'' as referring to all liability for People's operations that had occurred prior to closing even though the measure of that liability was not fixed or known at the time of closing. The defendant insisted that the language should be interpreted to mean liabilities known as of the time of closing. The majority of the court held the language concerning potential tort liability to be ambiguous that had to be resolved by a fact-finder. The dissent contended that there is was no ambiguity. Corbin is cited at § 14 as authority that provisions such as those in the asset purchase agreement are common and provide for disclosure of liability for which the purchaser assumes responsibility. Absent such an assumption, there is no intention to thrust liability on the purchaser.

(B) The following case is noteworthy

(1) Global Shredding Techs., Ltd. v. Aggregates Equip., Inc., 2005 U.S. Dist. LEXIS 13428 (N.D. Ohio 2005) . The parties entered into a contract, evidenced by the plaintiff's purchase order, for a scrap metal processing device to shred scrap automobiles and sheet scrap into metal feedstock for a steel mill. When the shredder did not function properly, the plaintiff brought this action under the Uniform Commercial Code for breach of an express warranty (§ 2-313), the implied warranty of merchantability (§ 2-314) and the implied warranty of fitness for a particular purpose (§ 2-315). The court described each of these warranties and their application to the facts of this case. It concluded that there was a breach of an express warranty and, since there was no exclusion or modification of the implied warranties in the purchase order, the court also found the each of the implied warranties was breached. The court granted summary judgment for the plaintiff on all of these counts.