Arthur was looking for a Father's Day gift for his dad, Tony. Tony was a cigar smoker but Arthur was a nonsmoker. Arthur went to a cigar store and was looking around when the proprietor suggested Arthur try a new imported cigar. The proprietor touted

Question

this new cigar as "just like the great Cuban cigars." Arthur was reluctant but did light one of the cigars, which had a pleasant aromatic smell and took about five to six minutes to be consumed. On this basis, Arthur bought a box of the cigars and presented them to his father as a gift. When the father smoked one of the cigars, it gave off an acrid smell and was completely consumed in less than two minutes. When Arthur saw this, he was very upset and asked his father to try another. The same situation was repeated with the acrid odor and the cigar burning down very quickly like a cigarette. After Arthur tried unsuccessfully to return the cigars for a refund, Arthur filed a small claims court action against the store. The case was based on the failure of the purchased cigars to conform to the sample, breach of the implied warranty of merchantability, and the misleading statement "just like the Cuban cigars." Discuss the probable outcome of the case.

Answer 1

?Depending on the court's interpretation, the statement "just like the Cuban cigars" may or may not constitute an express warranty. The question is whether this represents a description of the product, or is merely "sales talk" or "puffery. Clearly, goods sold on the basis of a sample give rise to an express warranty that the goods will approximate, or be similar to, the sample. These cigars clearly did not conform to the sample, and this non-conformity does represent breach of express warranty.
If a fair and average quality cigar would not burn down and be consumed so quickly (one to two minutes) in normal use and not give off an acrid odor, the implied warranty of merchantability also may have been breached. The cigars appear not to be fit for ordinary use.