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the law

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Merchantability and Fitness for a Particular Purpose are "implied" warranties created by the Uniform Commercial Code, specifically UCC2. See below. Some states and localities enforce these warranties more forcefully than others. California once did so rabidly. Implied warranties are not to be confused with claims like "good to 20 degrees" which are arguably express warranties. The manufacturer would likely claim they were just "puffing" or some other un-actionable form of inducement to purchase their product. Unfortunately there's no fight left in the consumer so they don't pursue the express warranty as you advise them to do when you tell them to "return the "xxxx" and ask for your money back if it doesn't perform according to the manufacturer's claims.

Unfortunately, I don't believe Section 2-314 would provide much of a remedy because the merchantable standard in this situation is its ok to sell the consumer a garment that doesn't perform as implied because everyone does it. All the goods fail equally and probably satisfy 2-314(2).

They do not, however, pass the 2-315 warranty, which is, in this case, an easier standard to meet. The goods, at the time of purchase, are sold for the purpose of keeping the buyer warm, and the buyer relied on the seller to furnish insulating garments, to his/her detriment. There was once a time in this land when a state AG would bring an action against a manufacturer for breach of implied warranty, perhaps seek an injunction against the sale of its goods and recover damages for consumers injured by the defective product. Sometimes it was the county prosecutor (in a wealthy county) who took the lead. I fear those days are past.

There's lots of case law dealing with implied warranties. Hopefully this points you in the right direction if you're not already heading that way.


§ 2-314. Implied Warranty: Merchantability; Usage of Trade.

2-316), 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.

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

  • (a) pass without objection in the trade under the contract description; and
  • (b) in the case of fungible goods, are of fair average quality within the description; and
  • (c) are fit for the ordinary purposes for which such goods are used; and
  • (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
  • (e) are adequately contained, packaged, and labeled as the agreement may require; and
  • (f) Conform to the promise or affirmations of fact made on the container or label if any.

2-316) other implied warranties may arise from course of dealing or usage of trade.

§ 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

Having read through the information supplied to me by Mike W. I have come to the conclusion the only way the companies I have written about will change or end their sales of bogus products is if the ultimate consumer (s) take the problem to the retailers of these products in mass. In that manner the retailer will have no choice but to put the problem in the hands of the finished product supplier who can then go back to the material supplier. If this was to happen and I suspect it will not then having the basic law on your side is meaningless. Why because as Mike says and I quote; “all the goods fail equally”!

It is therefore okay for one company to make and market a product that does not work and then other companies can enter the market with their competing products that also do not work. The perfect examples are all of the materials designated waterproof and breathable or the chopped staple fiberfills.

This seems the direction that is taking place not only in this country but the world. We in the USA are the biggest market in the world for everything so the rest of the world wants what we have as such the rest of the world gets the same none performing products we get.

We have a “consumer protection agency” so we are told but from what I see they do not function for the “implied” purpose of protecting the consumer; do they? We tax payers would save lots of money if the consumer protection agency were closed. But then again there are probably many agencies our tax dollars support that have no purpose and should also be closed.

HONESTY is the refusal to fake reality, i.e. to pretend that facts are other than what they are. Ayn Rand, “honesty as the rejection of unreality” Objectivism: the philosophy of AR. Page 267

The companies that offer garments that are promoted as waterproof and breathable pretend that they are. They do not work so they fake reality.

BREACH OF MORALITY: An error of knowledge is not a moral flaw, provided you are willing to correct it…But a breach of morality is the conscious choice of an action you know to be evil, or a willful evasion of knowledge, a suspension of sight and of thought.

AYN RAND: Galt’s Speech (Atlas Shrugged) For the New Intellectual page 179.

ETHICS is the branch of philosophy that… provides “a code of values to guide man’s choices and actions—the choices and actions that determine the purpose and course of his life.” LEONANRD PEIKOFF Introduction to “The Good,” Objectivism; The Philosophy

Of AR page 267 “The Objectivist Ethics”, Voice OF Reason page 13.

In my opinion there are many companies that serve the outdoor industry, I believe the majority demonstrate they and not honest, are immoral and are unethical. Their actions or purpose is to acquire monies via devious means by selling products under false pretenses. They do this by making a conscious choice even though they know what they are selling does not do what they claim. I think of them as being evil and it is obvious that they are evading the knowledge that their products do not work. They who run or own these companies will knowingly lie about their products to extract money from the consumers, pitiful!!!

A couple of testimonials.

Hi Jerry, attached photos of my Rhodesian Ridgeback with your coat on. It fits great, dries quickly, and we get asked about it often. Might want to consider a Wiggy's label on outside. Other picture is a window shade my wife fashioned from your IWC material. Does the job and lets light thru! Been using your sleeping bags since 1993 while in a LRS unit and backpacking. Nothing better. My son, a Captain in the infantry, is now using your bag. My wife has Raynaud's syndrome, but your Kodiak mittens have solved her problem. The booties are amazingly effective as well. My son was using them in Idaho at the Orchard Training Area, slipped out of his bag to relieve himself, one of the sergeants remarked that he looked like Robin Hood with them on! Anyway love your quality and design and always spreading the word about your products. Craig J

I am not good at moving pictures so you cannot see the dog or window. As for Craig’s suggestion that I put a label on the outside of my garments, that will never happen. When people come into the Wiggy’s showroom with jackets that have logos on them I always ask if the company that made the jacket pays them for being a bill board. Some resent my asking. Others I suspect like it that you recognize the brand. I find it disgusting and abusive, but that is me and I like to think many, many more think as I do.


I just received my order of the jacket liner size large runs a little big but am perfect with sweater or sweatshirt underneath. This morning tried it with long sleeve T-shirt in 35 degree weather with 15 mph winds and I was toasty warm. Just ordered another one in medium perfect for under my hard shell rain jacket. Now I have to decide between ducksback barren grounds or urban Antarctic parka. Thanks for great products. Rich

It is always good when someone notes the temperature they use my products in.

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