Printable Format84-2-317. Cumulation and conflict of warranties express or implied. Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply:
(a) Exact or technical specifications displace an inconsistent sample or model or general language of description.
(b) A sample from an existing bulk displaces inconsistent general language of description.
(c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.
History: L. 1965, ch. 564, ยง 51; January 1, 1966.
KANSAS COMMENT, 1996
This section treats the effect of two or more warranties, either express or implied, that are created in the same contract. The section presumes that all warranties are cumulative. Thus, a merchant, who by definition makes the implied warranty of merchantability under 84-2-314, also will be held under this section to any express warranties. This section also requires that, when reasonable, multiple warranties should be construed as consistent with each other. If the warranties made by the seller cannot reasonably be construed as consistent, the warranty that dominates is determined by the parties' intention. Paragraphs (a), (b), and (c) state rules to aid in determining the intent of the parties. But even when two warranties are inconsistent, the doctrine of equitable estoppel may preclude the seller from relying on any such inconsistencies as a defense.
Law Review and Bar Journal References:
"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 577, 582 (1975).
CASE ANNOTATIONS
1. Contributory negligence and assumption of risk cannot be asserted against a buyer in case based upon an express warranty. Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 324, 521 P.2d 281.
2. Rules for ascertaining intention on warranties stated and applied; error to refuse to instruct jury on express warranties. Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 312, 324, 521 P.2d 281.
3. Paragraph (c) applied; action to recover on implied warranty of fitness in furnishing paint primer; recovery allowed. Christopher & Son v. Kansas Paint and Color Co., 215 Kan. 185, 196, 523 P.2d 709. Modified: 215 Kan. 510, 511, 525 P.2d 626.