6.4 UCC Article 2 Warranties & Risk of Loss

California First-Year Law Students' Examination Baby Bar

Track your progress as you read

Finished sections get a check mark.

1 Introduction & FYLSE Examination Guide

1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique

2 Contracts: Mutual Assent, Capacity & Contract Formation

2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract

3 Contracts: Consideration, Estoppel & Implied Obligations

3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms

4 Contracts: Third-Party Beneficiaries, Assignment & Delegation

4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties

5 Contracts: Statute of Frauds, Parol Evidence & Interpretation

5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction

6 Contracts: Performance, Conditions, UCC Warranties & Breach

6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity

7 Contracts: Remedies, Discharge & Changed Circumstances

7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction

8 Criminal Law: Principles of Criminal Liability & Mens Rea

8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence

9 Criminal Law: Inchoate Offenses & Accomplice Liability

9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime

10 Criminal Law: Homicide & Crimes Against the Person

10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person

11 Criminal Law: Property Crimes, Theft & Habitation

11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson

12 Criminal Law: Defenses: Capacity, Justification & Excuse

12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse

13 Torts: Intentional Torts to Persons & Property

13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion

14 Torts: Privileges & Defenses to Intentional Torts

14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege

15 Torts: Negligence — Duty of Care & Breach

15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur

16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages

16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation

17 Torts: Strict Liability & Products Liability

17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability

18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts

18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts

6.4 UCC Article 2 Warranties & Risk of Loss

Key Takeaways Explain This Topic AI

An express warranty under UCC section 2-313 arises from any affirmation of fact, promise, description, or sample that becomes part of the basis of the bargain, with no magic words and no requirement that the seller intend to warrant.

The implied warranty of merchantability under section 2-314 attaches only when the seller is a merchant in goods of that kind and requires the goods to be fit for their ordinary purposes, while the implied warranty of fitness for a particular purpose under section 2-315 does not require a merchant seller but does require that the seller have reason to know of the buyer's particular purpose and reliance on the seller's skill or judgment.

Selling goods 'as is' disclaims both implied warranties at once but disclaims no express warranty.

Absent breach or contrary agreement, risk of loss passes on delivery to the carrier in a shipment contract and on tender at the destination in a destination contract, with FOB terms signalling which one applies; where no carrier is involved a merchant seller keeps the risk until the buyer actually receives the goods while a non-merchant seller sheds it at tender.

Risk of loss is governed by sections 2-509 and 2-510 rather than by the location of title, so an answer resolving the question by asking who held title is almost always wrong.

Last updated: September 2026

UCC Article 2 Warranties & Risk of Loss

Content map item 170 — UCC Article 2 is the single broadest entry in the Contracts map, and two of its components are easy to overlook because they do not fit the offer-acceptance-breach narrative: warranties , which define what the seller promised the goods would be, and risk of loss , which decides who absorbs the cost when goods are destroyed in transit through nobody's fault. Both generate clean, rule-driven multiple-choice questions, which is exactly why they get tested.

Remember the threshold question first. Article 2 applies to transactions in goods — things movable at the time of identification. For a hybrid contract mixing goods and services, most courts apply the predominant purpose test : if the deal is essentially for goods with incidental services, Article 2 governs the whole contract, and vice versa.

1. The Three Warranties of Quality

Warranty Source How created How disclaimed

Express § 2-313 Affirmation of fact or promise, description, or sample or model that becomes part of the basis of the bargain Practically impossible; a disclaimer inconsistent with an express warranty is inoperative

Implied warranty of merchantability § 2-314 Automatically, whenever the seller is a merchant with respect to goods of that kind Mention "merchantability"; if written, conspicuously. Or "as is" / "with all faults"

Implied warranty of fitness for a particular purpose § 2-315 Seller has reason to know the buyer's particular purpose and that the buyer is relying on the seller's skill or judgment Must be in writing and conspicuous . Or "as is"

Express Warranties (§ 2-313)

An express warranty arises from an affirmation of fact, a promise, a description of the goods, or a sample or model, so long as it becomes part of the basis of the bargain. Three points carry most of the exam weight:

No magic words. The seller need not say "warrant" or "guarantee," and need not intend to make a warranty.

Puffery is not warranty. "This is the finest truck on the lot" is opinion; "this truck has a rebuilt transmission" is fact. The line between opinion and fact is the most common testing point.

Basis of the bargain. The buyer need not prove detailed reliance; the affirmation is presumed part of the bargain unless the seller shows otherwise.

Implied Warranty of Merchantability (§ 2-314)

This warranty attaches only when the seller is a merchant in goods of that kind — a car dealer selling cars, not a dentist selling her own car. Merchantable goods must at minimum pass without objection in the trade, be of fair average quality, and be fit for the ordinary purposes for which such goods are used. The used-car buyer whose engine seizes on the drive home has a merchantability claim against a dealer and none against a private seller.

Implied Warranty of Fitness for a Particular Purpose (§ 2-315)

This warranty does not require a merchant seller. It requires only that the seller have reason to know of a particular purpose — one distinct from the ordinary use — and that the buyer actually rely on the seller's skill or judgment in selecting the goods. The buyer who asks the hardware clerk for a paint that will adhere to galvanised steel and is handed the wrong product has a fitness claim even though the paint is perfectly merchantable for ordinary use.

Disclaimer trap: an "as is" sale disclaims both implied warranties at once, but disclaims no express warranty. A contract that describes the goods as "a 2019 model with 40,000 miles" and then says "sold as is" still carries the express warranty created by that description.

2. Risk of Loss: Who Pays When the Goods Burn

Risk of loss asks a narrow question: the goods have been destroyed or damaged without fault of either party, so which party bears the loss and, if the buyer, must still pay the price? Work through the hierarchy in order. Risk of Loss Analysis

├── 1. Has either party BREACHED? → breaching party bears the risk (§ 2-510)
├── 2. Does the AGREEMENT allocate risk? → the agreement controls (§ 2-509(4))

├── 3. Is a common CARRIER involved?

│ ├── Shipment contract (FOB seller's city) → risk passes on DELIVERY TO CARRIER
│ └── Destination contract (FOB buyer's city) → risk passes on TENDER AT DESTINATION
├── 4. Goods held by a BAILEE → risk passes on receipt of a negotiable document of title,
│ acknowledgment by the bailee, or receipt of a non-negotiable document
└── 5. No carrier, no bailee (§ 2-509(3))
├── MERCHANT seller → risk passes on the buyer's ACTUAL RECEIPT of the goods
└── NON-MERCHANT seller → risk passes on TENDER of delivery
The carrier rules (§ 2-509(1))

The default is a shipment contract . A seller obliged only to ship — the ordinary case, and the result whenever the contract is silent — bears risk only until the goods are duly delivered to the carrier. A destination contract exists only where the contract expressly requires delivery at a particular destination, and there risk stays with the seller until tender at that destination. The mnemonic that decides most questions: FOB is the pivot. "FOB seller's city" is a shipment contract; "FOB buyer's city" is a destination contract.

The no-carrier rule (§ 2-509(3))

When the buyer is to collect the goods at the seller's place of business, the merchant/non-merchant distinction controls. A merchant seller keeps the risk until the buyer physically receives the goods — so goods that burn in the merchant's warehouse after the buyer has paid and been told they are ready remain the merchant's loss. A non-merchant seller sheds the risk at tender , so the same fire after tender falls on the buyer.

Breach shifts everything (§ 2-510)

Breach overrides the entire hierarchy. Where the goods so fail to conform that the buyer has a right of rejection, risk stays on the seller until cure or acceptance. Where the buyer repudiates or breaches after conforming goods have been identified, risk sits on the buyer for a commercially reasonable time, but only to the extent of any deficiency in the seller's insurance coverage.

The classic trap: candidates ask "who had title?" Article 2 deliberately abandoned title as the organising concept. Under § 2-401 title matters for a few discrete questions, but risk of loss is governed by §§ 2-509 and 2-510 regardless of where title sits. An answer choice that resolves risk of loss by locating title is almost always wrong.