Okla. Stat. tit. 12A § 2-313
Okla. Stat. tit. 12A, § 2-313
Oklahoma Code Comment
(1) (a) and (2) These two subsections should be read together. The older cases required the use of the word "warranty" or "guarantee." The courts said that a mere affirmation or a "descriptive was not a warranty. in an early Oklahoma case it was held that the description of lumber as two-by-fours, and the like was only a description and not a warranty, Brown v. Baird, 5 Okl. 133,48 P. 180 (1897), but the later decisions have followed a more modern view. Thus, it has been held in many Oklahoma decisions that no particular language is necessary. "It is not required that it shall be in writing or be made in specific terms; and it is not at all necessary that the word 'warrant' or 'warranty' shall be used. Any direct and positive affirmation of a matter of fact as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations, and as a part of the contract, designed by him to induce the action of the purchaser, and actually, to some extent at least, relied upon by the latter in making the purchase, will be deemed to be a warranty." Woolsey v. Zieglar, 32 Okl. 715, 123 P. 164 (1912). See also Frey v. Failes, 37 Okl. 297, 132 P. 342 (1913); Eden v. Vloedman, 202 Okl. 462, 214 P.2d 930 (1949); Jackson v. Gifford, Okl., 264 P.2d 313 (1953); 12 Okl.Digest Sales 259-262, making and requisites of express warranty.
Oklahoma has previously placed emphasis upon the intent of the parties. Thus it was said that any statement made by the seller with the intent to induce reliance by the buyer, and the buyer in fact relies thereon is a warranty. Wat Henry Pontiac Co. v. Bradley, 202 Okl. 82, 210 P.2d 348 (1949). The Commercial Code states in paragraph (2) that it is not necessary for him to have the specific intention to make a warranty. It is necessary, however, that it be a part of the "basis of the bargain." It is doubtful that the change of terminology is particularly significant. Before a term can become a part of the bargain, at least some element of objective intent is required, and therefore only the "specific intent" or subjective intent, becomes unimportant.
(1) (b) Oklahoma previously held the warranty of "description" was an implied, not an express, warranty. Markle v. Stekoll, 112 Okl. 287, 240 P. 1044 (1925). The Commercial Code approach is more realistic. When the agreement describes the property to be delivered, it is not realistic to speak of his obligation to deliver the property described as "implied"-it is an expressly stated undertaking.
(1) (c) The warranty of description by sample has heretofore been an "implied" warranty in Oklahoma. Pauls Valley Milling Co. v. Gabbert, 182 Okl. 500, 78 P.2d 685, 117 A.L.R. 466 (1938); Collins Cotton Co. v. Wooten-Burton Sales Co., 81 Okl. 67, 196 P. 681 (1921). See Okl.Digest, Sales 271, sale by sample. This, too, is made into an express warranty by the Commercial Code. The importance of making these "express" rather than "implied" warranties lies in the application of the "disclaimer" clause, for it is usually held that implied warranties may be disclaimed, but express warranties cannot be. This will be discussed more fully under Sec. 2-316 .