§490:2-314  Implied warranty:  merchantability; usage of trade.  (1)  Unless excluded or modified (section 490:2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.  Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

     (2)  Goods to be merchantable must be at least such as:

    (a)   Pass without objection in the trade under the contract description; and

    (b)   In the case of fungible goods, are of fair average quality within the description; and

    (c)   Are fit for the ordinary purposes for which such goods are used; and

    (d)   Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

    (e)   Are adequately contained, packaged, and labeled as the agreement may require; and

    (f)   Conform to the promises or affirmations of fact made on the container or label if any.

     (3)  Unless excluded or modified (section 490:2-316) other implied warranties may arise from course of dealing or usage of trade. [L 1965, c 208, §2-314; HRS §490:2-314]

Law Journals and Reviews

  Tort and Insurance "Reform" in a Common Law Court.  14 UH L. Rev. 55.

Case Notes

  Article 2 did not apply to facts of case with regard to plaintiff's merchantability theory, where, inter alia, there was no sale of goods involved in the matter.  841 F. Supp. 986.

  Hawaii courts have not adopted the custom product exception, and the court believed it would be inappropriate to consider it; even if the court were to consider it, the exception did not apply.  Defendant's motion as to breach of implied warranty of merchantability claim denied; genuine issue of material fact existed whether the feed plaintiff purchased from defendant was defective or unfit for the ordinary purpose for which it was used.  971 F. Supp. 2d 1017 (2013).

  Although plaintiff alleged that through the use of Hawaiian representation and imagery on the packaging of defendant's Hawaiian brand snacks, defendant expressly warranted that the products were made in Hawaii, the court found that plaintiff failed to state a breach of express or implied warranty claim.  The court agreed with defendant that the use of the word "Hawaiian", combined with the imagery on the packaging, did not constitute an affirmation of fact or promise.  390 F. Supp. 3d 1231 (2019).

  Where product is defective, even when seller does not detect defect, seller is liable under implied warranty of merchantability.  66 H. 237, 659 P.2d 734.

  "Unfitness" in products liability actions in implied warranty compared to "defectiveness" in strict products liability actions in tort; neither tort nor warranty formulations of test for product defectiveness require that product actually malfunction.  74 H. 1, 837 P.2d 1273.

  Where there was sufficient evidence on record for jury to decide that crane was defective and not merchantable, court should have allowed plaintiff's claim for breach of implied warranty of merchantability to be submitted to jury.  86 H. 383 (App.), 949 P.2d 1004.