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INTRODUCTION
Judicial and scholarly interpretations of Uniform Commercial Code section 2-314(3)(1) are scarce. Section 2-314(3) implied warranties complement the implied warranties of merchantability(2) and fitness for a particular purpose:(3) "Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade."(4) Although the language of the statute is permissive rather than mandatory,(5) the generality of that language and the Code's expansive definitions of course of dealing(6) and usage of trade(7) make it plausible to assume that the residual implied warranties validated by Section 2-314(3) would be common adjuncts to courses of dealing and usages of trade. The dearth of 2-314(3) case law(8) and commentary(9) is therefore intriguing. What explains the widespread neglect of such a potentially attractive basis for recovery in breach of warranty actions?
This article examines U.C.C. Section 2-314(3) from two perspectives. First, the statutory text, the Official Comment,(10) and the few judicial and scholarly interpretations of 2-314(3) are considered in an effort to explain why counsel, courts, and commentators appear so often to have disregarded implied warranties arising from course of dealing or usage of trade.(11) Second, the potential for recovery under 2-314(3) is revealed in support of the thesis that the statute provides a basis for recovery in more cases than past interpretations indicate.(12)
EXPLANATION OF THE NEGLECT
Section 2-314(3) has largely been ignored. One of the few scholarly analyses of the statute suggests only four reasons why " b!uyers may fail to cite section 2-314.(13)
First, there may be no relevant course of dealing or usage of trade to create a supplemental warranty. Second, if the buyer can prove the existence and breach of any other warranty, he need not resort to section 2-314(3), although he would be wise to raise it in the alternative. Third, the seller may have effectively disclaimed all implied warranties under section 2-316(3), leaving the buyer no implied warranty protection. Finally, the buyer may confuse this genus of implied warranty with the implied warranty of merchantability because of their shared location in section 2-314.(14)
All of these reasons have undoubtedly contributed to the prevailing indifference that Section 2-314(3) has inspired.(15) The list is not exhaustive, however; the historical neglect of implied warranties arising from course of dealing...