Wisconsin Statutes

Wis. Stat. § 402.314 (2026)

Implied warranty: merchantability; usage of trade

✓ current as of July 2026

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402.314402.314 Implied warranty: merchantability; usage of trade.

402.314(1)(1) Unless excluded or modified (s. 402.316), 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.

402.314(2)(2) Goods to be merchantable must be at least such as:

402.314(2)(a)(a) Pass without objection in the trade under the contract description; and

402.314(2)(b)(b) In the case of fungible goods, are of fair average quality within the description; and

402.314(2)(c)(c) Are fit for the ordinary purposes for which such goods are used; and

402.314(2)(d)(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

402.314(2)(e)(e) Are adequately contained, packaged, and labeled as the agreement may require; and

402.314(2)(f)(f) Conform to the promises or affirmations of fact made on the container or label if any.

402.314(3)(3) Unless excluded or modified (s. 402.316) other implied warranties may arise from course of dealing or usage of trade.

402.314 AnnotationAn unincorporated organization of band mothers who sold food at a fund-raising luncheon were not merchants as contemplated by sub. (1). Samson v. Riesing, 62 Wis. 2d 698, 215 N.W.2d 662 (1974).

402.314 AnnotationEvidence that the goods break or physically deteriorate after delivery may be relevant to whether the goods were fit at the time of delivery for the ordinary purpose for which they are used, but consideration of that evidence for that purpose does not impose an express warranty for future performance. City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6, 269 Wis. 2d 339, 675 N.W.2d 487, 02-2192.

402.314 AnnotationA party may sue for breach of implied warranties under the Uniform Commercial Code although it does not take possession of the goods if it is the party who contracts to buy the goods. Estate of Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101, 335 Wis. 2d 151, 801 N.W.2d 781, 09-1212.

402.314 AnnotationWhen circumstances rendered a breach of good faith and of a fiduciary obligation chargeable to the buyer, the buyer was barred from asserting causes based on a breach of the warranty of merchantability, or on the seller’s claimed fault, to recover from the seller that portion of the claim disallowed, with the buyer’s consent, by the shipper. Greisler Brothers, Inc. v. Packerland Packing Co., 392 F. Supp. 206 (1975).

402.314 AnnotationThe Implied Warranty of Merchantability and the Remote Manufacturer. Anzivino. 101 MLR 505 (2017).

402.314 AnnotationStatus of Products Liability in Wisconsin. Coyne. WBB Aug. 1970.

Notes of Decisions

Cited in 30 cases (4 in the last 5 years), 1975–2024 · leading case: City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6 (Wis. Ct. App. 2003).

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City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6 (Wis. Ct. App. 2003). · cites it 20× “We conclude: (1) the trial court did not erroneously decide that an implied warranty could contain a warranty on future performance of the poles, but rather properly considered the generally expected service life of like poles in determining whether these poles were merchantable…”

Est. of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70 (Wis. 2012). · cites it 7× “The court reasoned that provisions of the Uniform Commercial Code (UCC), Wis. Stat. § 402.314 and Wis. Stat. § 402.”

Est. of Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101 (Wis. Ct. App. 2011). · cites it 9× “As we have seen, Excel's delivery of contaminated meat to the E&B Sizzler restaurants breached implied warranties recognized by Wis. Stat. §§ 402.314 and 402.315. In support of its contention that the trial court erred in not dismissing Sizzler USA Franchise's claim for…”

Lamont v. Winnebago Indus., Inc., 569 F. Supp. 2d 806 (E.D. Wis. 2008). · cites it 8× “” Wis. Stat. § 402.314 (2)(e). Relying on Mayberry v.”

Wilson v. Tuxen, 2008 WI App 94 (Wis. Ct. App. 2008). · cites it 6× “(b) If the animal is a reactor with respect to the covered disease, that the animal is a reactor.”

Heather Floyd v. Am. Honda Motor Co., Inc., 966 F.3d 1027 (9th Cir. 2020). “(on behalf of the Wisconsin subclass); (VII) breach of implied warranties under Wisconsin law, Wis. Stat. Ann. § 402.314 (on behalf of the Wisconsin subclass); (VIII) breach of express warranties under Wisconsin law, Wis.”

Rich Prods. Corp. v. Kemutec, Inc., 66 F. Supp. 2d 937 (E.D. Wis. 1999). · cites it 2× “See, Wis. Stat. §§ 402.314 & 402.315. Section 2-714 allows a buyer to recover as damages “the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable,” including “incidental and consequential damages” as those…”

Dresser Indus., Inc., Waukesha Engine Div. v. The Gradall Co., 965 F.2d 1442 (7th Cir. 1992). · cites it 2× “Wis.Stat. §§ 402.314 & 402.315. The court denied summary judgment on this issue, finding that issues of fact remained as to whether Gradall adopted Dresser’s warranty.”

Dry Dock, LLC v. Godfrey Conveyor Co., Inc., 717 F. Supp. 2d 825 (W.D. Wis. 2010). · cites it 3× “Defendant Godfrey Marine Plaintiffs allegations that defendants sold plaintiff products that were materially defective and not fit for sale raise a claim of breach of the implied warranty of merchantability under Wis. Stat. § 402.314 . Defendant Godfrey Marine argues that any…”

Taterka v. Ford Motor Co., 271 N.W.2d 653 (Wis. 1978). “Merchantability is defined in sec. 402.314, Stats.: “402.314 Implied warranty: merchantability; usage of trade.”

Goudy v. Yamaha Motor Corp., USA, 2010 WI App 55 (Wis. Ct. App. 2010). · cites it 2× “At the outset, we reject Goudy's contention that Yamaha and Winnebagoland failed to meet the burden of proof on summary judgment as to breach of implied warranty, under Wis. Stat. § 402.314 and the Magnuson-Moss Warranty Act, and revocation of acceptance.”

Consol. Papers, Inc. v. Dorr-Oliver, Inc., 451 N.W.2d 456 (Wis. Ct. App. 1989). “The implied warranties of merchantability Consolidated relies on are set forth in sec. 402.314(2), Stats.: "Goods to be merchantable must be at least such as: (a) Pass without objection in the trade under the contract description; and.”

Show all 30 citing cases →

— Wis. Stat. § 402.314(1) — 3 cases

Seth H. Kiewiz v. My Custom Shop, Inc. (Wis. Ct. App. 2020).

Rural Mut. Ins. Co. v. Ballweg Implement Co., Inc. (Wis. Ct. App. 2024).

Lyvia Skroblin v. Jill Johnston Yoder (Wis. Ct. App. 2024).

— Wis. Stat. § 402.314(2) — 1 case

— Wis. Stat. § 402.314(2)(a) — 3 cases

City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6 (Wis. Ct. App. 2003). “We conclude: (1) the trial court did not erroneously decide that an implied warranty could contain a warranty on future performance of the poles, but rather properly considered the generally expected service life of like poles in determining whether these poles were merchantable…”

Wisconsin Elec. Power Co. v. Zallea Bros., Inc., 443 F. Supp. 946 (E.D. Wis. 1978).

Rural Mut. Ins. Co. v. Ballweg Implement Co., Inc. (Wis. Ct. App. 2024).

— Wis. Stat. § 402.314(2)(c) — 1 case

— Wis. Stat. § 402.314(l) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.