## Facts

- Joseph R. Boud, as trustee, purchased a Cruisers 3375 Esprit yacht from SDNCO, Inc., doing business as Wasatch Marine, a retail dealer.
- Boud relied in part on a manufacturer brochure that depicted the model and included a caption claiming “best performance,” “superb handling,” and related promotional qualities.
- After delivery, the yacht experienced multiple mechanical and electrical problems, and repairs were attempted under a limited written warranty providing repair or replacement of defective parts.
- The purchase contract included a limited warranty and an express disclaimer of warranties beyond that limited warranty.
- Boud sued the dealer and the manufacturer seeking rescission and alleging breach of express warranty (based on the brochure), deceptive sales practices, and negligent misrepresentation.
- The district court granted summary judgment for defendants, concluding the brochure language was nonactionable sales talk and did not create an express warranty.

## Issues

1. Whether the brochure photograph and caption created an express warranty under Utah’s version of U.C.C. § 2-313, and if so, whether it was effectively disclaimed by the written contract.
2. Whether inclusion of the photograph and caption constituted deceptive sales practices.
3. Whether the photograph and caption constituted negligent misrepresentation.

## Decision

- The Utah Supreme Court affirmed summary judgment for the dealer and manufacturer.
- The court held the brochure did not create an express warranty because the statements were vague, subjective puffery and the photograph was not a factual representation about mechanical or electrical reliability.
- The court held that even if the brochure could be read to create an express warranty, the written purchase contract’s limited-warranty and disclaimer provisions negated any additional warranty.
- The court rejected Boud’s challenges to the disclaimer based on duress and lack of consideration due to insufficient supporting evidence.
- Because the brochure did not supply an actionable factual representation, the deceptive sales practices and negligent misrepresentation claims failed on the same predicate.

## Legal Principles

- An express warranty requires an affirmation of fact, promise, or description of goods that becomes part of the basis of the bargain; subjective promotional statements are not enough.
- General claims such as “best performance” and “superb handling” are typically puffery and are too indefinite to constitute an express warranty.
- A written sales contract containing a limited warranty and a clear disclaimer can preclude reliance on alleged pre-contract warranties beyond the contract terms.
- When the challenged marketing statements are non-factual puffery, related statutory deception and tort misrepresentation claims premised on those statements may fail as a matter of law.

## Conclusion

The court held that the brochure’s generalized promotional language and photograph did not create an express warranty, and that the written contract limited and disclaimed any additional warranties; without an actionable factual representation, the deceptive sales practices and negligent misrepresentation claims also could not proceed.


Boud v. SDNCO, Inc., 54 P.3d 1131 (Utah 2002)