A contractor purchased a furnace from a distributor of heating systems, after the distributor recommended the furnace based on t
he contractor's stated needs. The bill of sale between the distributor and the contractor stated, "All warranties, express or implied, are hereby disclaimed." The contractor installed the furnace in an office building. Due to a manufacturing defect, the furnace failed to heat the building as it should have. The contractor was sued by the owner of the office building. Can the contractor assert a claim against the distributor for breach of the implied warranty of merchantability?
No, because there is no implied warranty of merchantability for sales between merchants.
No, because the distributor disclaimed this warranty.
Yes, because furnace failed to heat the building.
Yes, because the contractor relied on the distributor's judgment.
The correct answer is Yes, because furnace failed to heat the building
The positive violation of the contract will not result from the non-compliance with the main provision of the contract, but from the non-observance of the attached duties arising from the principle of objective good faith in its function of protection and tutelage. Examples of this violation are the duty to provide information, protection, assistance, cooperation, and confidentiality. If any of these duties are not fulfilled, there will be a positive violation of the contract, which may give rise to the request, by the innocent party, for the termination of the contract or even the opposition of the exception of a contract not fulfilled.
