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The creation of express warranties by affirmation or promise is governed by Utah Code Ann. § 70A-2-313, which adopts the Uniform Commercial Code's provisions governing express warranties. Utah Code Ann. § 70A-2-313(1)(a), which governs promotional materials, states that an affirmation of fact or promise made by a seller that becomes part of the basis of a bargain creates an express warranty. Utah Code Ann. § 70A-2-313(1)(a) (1999). The next subsection places a limitation on this rule, however; it states that an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create an express warranty. Utah Code Ann. § 70A-2-313(2). Thus, the determination of whether an express warranty has been created ultimately hinges upon an examination of whether representations made by the seller were mere statements of opinion or were, rather, promises or affirmations of fact.
Appellant Joseph Boud visited Wasatch Marine, a Salt Lake City retailer run by SDNCO, Inc., that was selling yacht manufactured by Cruisers. Wasatch Marine gave Boud a copy of Cruisers' 1999 sales brochure. The brochure contained a photograph of Cruisers' 3375 Esprit model with a caption indicating that the particular yacht was offering the best performance and cruising accommodations in its class. Due in part to the depictions in the brochure, Boud agreed to buy a 3375 Esprit model yacht for over $150,000. Because of mechanical and electrical problems with the yacht, appellant sought rescission of his contractual agreement from appellee. The Third District Court, Salt Lake County, Utah, granted summary judgment in favor of appellee. Appellant challenged the decision, claiming that the district court erred in ruling that the photograph and caption in the sales brochure did not amount to an express warranty. He maintained that the district court should have found that the corporation engaged in deceptive sales practices in violation of Utah Code Ann. § 13-11-4.
Did the photograph and caption in the sales brochure amount to an express warranty, entitling the rescission of the contract when the object of the same proved to be defective?
The appellate court affirmed the judgment, holding that the brochure did not provide an express warranty. The photograph and caption were not objective or specific enough to quality as either facts or promises; the statements made in the caption were merely opinions. Because the photograph did not make any factual representations with respect to the problems alleged by the appellant, it did not create an express warranty on which the appellant could sustain his claims. The appellant disclaimed any express warranty that might have been created during the negotiation process by signing the written sales agreement. The fact that the appellant was motivated to sign the sales agreement in order to obtain a favorable price did not implicate duress. The contract was supported by consideration when the appellant signed the contract, as he became entitled to the delivery of the yacht and coverage under the limited warranty.