An Implied Warranty of Sustainability
By Christine Hottinger, Staff Contributor
Do you know where your banana has been? About 70 years ago, Chiquita Banana told us they liked the climate of the tropical equator, with a cutesy “Sí sí,” but do they come from the Spanish-speaking countries around the equator? How are they grown in those countries?
Bananas have had a strong place in US culture for over 100 years, a strong enough place that when the favored varietal, the Gros Michel banana, became racked with disease across almost all plantations, we quickly replaced it with another-the Cavendish banana. Did you know your banana had a first name? Although it may not be as much of a surprise that banana production is environmentally unsound, most consumers are not able to educate themselves or control this aspect of their bananas. While Dole recently settled a lawsuit over false claims of the environmental friendliness of its banana production, consumers usually have no legal means to improve the environmental impact of banana production.
In cases where buyers lack the power to control or inspect a good, common law offers a particular kind of remedy: an implied warranty on the contract. Unlike express contract terms, some promises of quality are implied by law into all contracts. An implied warranty becomes a contract term without the parties bargaining for it. The implied warranty of merchantability is the oldest implied warranty, guaranteeing that goods purchased are of merchantable quality, or meet the standard of quality for that item in general. Another important warranty development, the implied warranty of habitability, was first established in Washington, D.C., and eventually became a term in most leases across the country. Those who fought for this warranty sought to improve the conditions of rental apartments by taking aim at specific policies, although the warranty of habitability’s success in achieving those aims remains contentious.
“[Sustainability] is a valuable policy aim worthy of being guaranteed by contracts.”
Sustainability is a worthy policy aim, and a growing force in the U.S. An implied warranty of sustainability would create an affirmative duty on the part of sellers to provide sustainable goods. Implied warranties are sometimes called default terms, because many may be disclaimed, or contracted around. They are frequently justified as being what most parties would contract for, but default terms may also correct an information imbalance: when they are disclaimed, the seller informs the buyer about a pertinent quality of the good. This informational function could improve the situation of banana consumers greatly: letting a consumer know that a banana is not sustainably produced. In turn, consumers may begin favoring more environmentally friendly bananas, as well as becoming better informed about their purchase.
Sustainability is a pertinent quality of food, and one that is growing in importance to consumers, the economy, and the world as we face global climate change. It is a valuable policy aim worthy of being guaranteed by contracts. Disclaiming the warranty would create a flow of information to consumers, who are less able than sellers to control this quality of their bananas. An implied warranty of sustainability is well-suited for contracts for the sale of bananas. I develop this idea further in a forthcoming note to be published in the Georgetown International Environmental Law Review.