"Sanity" wrote in message
...


"Jonathan Kamens" wrote in message
...
Good golly, there are a lot of people commenting in this
thread who don't seem to have a clue about how our legal
system works but think they do anyway.

When a merchant sells you a product, there are implied
warranties of merchantability and fitness for purpose. These
warranties apply unless the merchant explicitly disclaims
them. In some jurisdictions they cannot be disclaimed (i.e.,
the merchant is stuck with them whether he likes them or not).
These warranties apply to the merchant who sells the product,
*not* to the manufacturer. If the product is sold in a chain
of transactions (e.g., manufacturer to distributor,
distributor to merchant, merchant to consumer), there are
implied warranties at each link in the chain between the two
parties to that particular transaction.

Merchantability applies here because the product failed when
used as intended and in accordance with its published
instructions.

Fitness for purpose applies here because the product's
instructions claimed that it would perform adequately and it
did not, and because the purchaser asked the merchant
specifically if it would perform as desired and was told by a
representative of the merchant (i.e., the Lowe's associate)
that it would.

The OP does not have a contract with the manufacturer of the
product, because he did not buy the product from the
manufacturer. The OP has a contract with Lowe's, because he
bought the product from Lowe's, and therefore the implied
warranties at the OP's disposal for recouping damages for his
loss are with Lowe's not with the manufacturer.

If, indeed, the manufacturer of the product was negligent in
selling a product which they claimed would be safe for
concrete when used in certain conditions and which was not in
fact safe for concrete when used in those conditions, then
the OP could have a claim against the manufacturer for
negligence, independent of the implied warranties between
Lowe's and the OP.

In short, if the facts are as presented by the OP (i.e., his
concrete was old enough and sealed properly, the product said
it was safe to use on concrete that was old enough and sealed
properly, and yet the concrete flaked when the product was
used on it), then he can certainly sue Lowe's for damages
based on the implied warranties of merchantability and
fitness for purpose, and he can also, should he wish to do
so, sue the manufacturer for negligence.

It appears from the information provided by the OP that Lowe's
has its own contract with the manufacturer which allows Lowe's
to force the manufacturer to cover any claims for damages
arising from its products sold by Lowe's. That's all well and
good for Lowe's, but it has nothing to do with the OP, who is
not a party to that contract. It is not the OP's concern
whether Lowe's can or does successfully collect reimbursement
from the manufacturer for whatever damages Lowe's pays out to
the OP, and the contact between Lowe's and the manufacturer
cannot be used as the basis of a lawsuit initiated by the OP
against either Lowe's or the manufacturer. Frankly, I'm not
sure why Lowe's showed it to the OP; it just muddied the
waters.

See http://en.wikipedia.org/wiki/Implied_warranty for more
information about implied warranties.

Thank you for the most intelligent reply I have received to date. I was
trying to convey your message but not as eloquently as you did.

agreed and I look forward to your results