Also known as: passed without objection · passing without objection · passes without objection · no objection raised
Written by attorneys — see sources below.
A criterion of merchantability under which goods satisfy the implied warranty of merchantability when knowledgeable buyers in the relevant trade would accept them without complaint when sold under the contract description.
Premier Manufacturing sold Patricia Patel 5,000 solid state drives described as new 1 TB units for laptop assembly. After integration many drives failed random data writes at a significant rate. Trade buyers of new drives matching that description would reject the batch for unreliable performance.
Prairie Grain Corp sold High Meadow Farms a shipment described as No. 2 yellow feed corn. Laboratory tests confirmed nutritional content and moisture within normal parameters. In the local feed grain trade corn with that level of broken kernels and dust is routinely bought and used without objection.
Safety Factors, Inc., a company engaged in renting, repairing, and selling equipment, purchased seven Night Warrior light towers from Federal Signal Corporation for rental and sale. Before the purchase, Safety Factors president Steve Fors discussed the capabilities and features of the new Night Warrior model with Federal Signal representative David Robbins. Fors compared it to the older TPME model that Safety Factors had used successfully. Safety Factors tested the towers through a full field of motion for approximately five minutes without incident before placing them into service. Problems began in late February 1989 during the first rental to Tucci & Sons. These included the restrike problem in which lamps failed to relight after an interruption or shut down once reaching full intensity, and one tower had reversed fuel lines. Safety Factors contacted Federal Signal service manager Herbert Moore, who visited the site and traced the restrike problem to the Lima generator. By May 1989 a local service company retrofitted all seven towers with a voltage regulator device at no cost. After the restrike fix, excessive oil leakage from the diesel motors caused repeated shutdowns because vibration loosened the bolts securing the crankcase to the generator mount. All Power, the authorized service agent for engine manufacturer Hatz, accepted units for repair beginning in October, but the repairs proved unsuccessful after nine to twelve months of attempts. By the end of July 1991, Hallett had made this repair to every tower. Additional problems occurred from the outset of use. The electric winches failed to raise and lower the lights reliably. They were not watertight. They had underpowered motors whose gears stripped under binding. Ignitions mounted on the generator vibrated apart. Short exhaust pipes rusted out and fell off. The long loose main power cable was easily pinched when lowered in the dark. Federal Signal sued Safety Factors to recover the purchase price of the towers and other items. Safety Factors counterclaimed for breach of warranty and damages. Following a bench trial the court entered judgment for Federal Signal in the amount of $74,446.64 after allowing limited repair credits. The Court of Appeals certified the case to the Washington Supreme Court on October 12, 1993.
View caseNo. Goods can pass without objection even if they contain minor variations that the trade routinely accepts under the contract description. The standard measures acceptability against ordinary commercial expectations in the relevant trade rather than absolute perfection.
Supporting sources
Pass without objection applies to all goods and focuses on whether the trade would accept them under the contract description. Fair average quality applies only to fungible goods and addresses a separate merchantability element.
Supporting sources
No. When goods sold under a specific description demand substantially more preparation or trimming than comparable items in the trade, they fail the pass-without-objection standard even if they remain usable.
Supporting sources
No. Latent defects that appear after ordinary processing or integration can still render goods unmerchantable if knowledgeable buyers in the trade would object to the performance under the contract description.
Supporting sources
Merchantability is judged by trade standards. Goods satisfy the pass-without-objection element when they meet the expectations of knowledgeable buyers in the relevant trade under the contract description, not when they satisfy one buyer's subjective comparison to prior shipments.
Supporting sources