ASSIGNMENT 3

Client's Facts: Client recently bought a toaster at a local flea market. The market is open year-round, Friday through Sunday. The booth she bought the toaster from sells small appliances and is always open at the same location at the flea market. The toaster appeared to be brand new (it was in the original box). The toaster worked for two days then stopped toasting. When the client tried to return the toaster, the booth owner refused to give the client her money back or replace the toaster.

Rule of Law: Section 21-2-314 of the state commercial code provides that, "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." The section also provides that the seller must replace the goods or return the purchase price if the goods are not merchantable. According to the section, merchantable means the goods are fit for the ordinary purpose for which they are manufactured.

Section 21-1-101 defines a merchant as "one who routinely is engaged in the purchase and sale of the kind of goods involved in the sales contract."

Case Law: In the case of Dinelle v. Eldson the court held that a flea market seller can be considered a merchant within the meaning of the commercial code if the seller sells the same products at the flea market on a continuous basis.

Assignment:

A. Based on the information presented in the problem analyze a detailed analysis of the question of whether the client has a remedy under Section 21-2-314.

B. Repeat Assignment A, assuming the following facts: Client bought the same toaster at a garage sale. The seller has a garage sale every weekend at the same location.