Colorado Code
Part 3 - General Obligation and Construction of Contract
§ 4-2-313. Express Warranties by Affirmation, Promise, Description, Sample

Source: L. 65: p. 1310, § 1. C.R.S. 1963: § 155-2-313.
Cross references: For warranties relating to motor vehicles, see article 10 of title 42.
Prior Uniform Statutory Provision: Sections 12, 14 and 16, Uniform Sales Act.
Changes: Rewritten.
Purposes of Changes: To consolidate and systematize basic principles with the result that:

This section reverts to the older case law insofar as the warranties of description and sample are designated "express" rather than "implied".
This is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish. But in determining what they have agreed upon good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation.
A description need not be by words. Technical specifications, blueprints and the like can afford more exact description than mere language and if made part of the basis of the bargain goods must conform with them. Past deliveries may set the description of quality, either expressly or impliedly by course of dealing. Of course, all descriptions by merchants must be read against the applicable trade usages with the general rules as to merchantability resolving any doubts.
Although the underlying principles are unchanged, the facts are often ambiguous when something is shown as illustrative, rather than as a straight sample. In general, the presumption is that any sample or model just as any affirmation of fact is intended to become a basis of the bargain. But there is no escape from the question of fact. When the seller exhibits a sample purporting to be drawn from an existing bulk, good faith of course requires that the sample be fairly drawn. But in mercantile experience the mere exhibition of a "sample" does not of itself show whether it is merely intended to "suggest" or to "be" the character of the subject-matter of the contract. The question is whether the seller has so acted with reference to the sample as to make him responsible that the whole shall have at least the values shown by it. The circumstances aid in answering this question. If the sample has been drawn from an existing bulk, it must be regarded as describing values of the goods contracted for unless it is accompanied by an unmistakable denial of such responsibility. If, on the other hand, a model of merchandise not on hand is offered, the mercantile presumption that it has become a literal description of the subject matter is not so strong, and particularly so if modification on the buyer's initiative impairs any feature of the model.
Cross References:
Point 1: Section 4-2-316.
Point 2: Sections 1-102(3) and 4-2-318.
Point 3: Section 4-2-316(2)(b).
Point 4: Section 4-2-316.
Point 5: Sections 4-1-205(4) and 4-2-314.
Point 6: Section 4-2-316.
Point 7: Section 4-2-209.
Point 8: Section 4-1-103.
Definitional Cross References:
"Buyer". Section 4-2-103.
"Conforming". Section 4-2-106.
"Goods". Section 4-2-105.
"Seller". Section 4-2-103.