§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.



  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.