57A-2-314.   Implied warranty--Merchantability--Usage of trade. (1)      Unless excluded or modified (§ 57A-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 promises or affirmations of fact made on the container or label if any.

             (3)      Unless excluded or modified (§ 57A-2-316) other implied warranties may arise from course of dealing or usage of trade.

Source: SL 1966, ch 150, § 2-314; SDCL, §§ 57-4-30 to 57-4-32.

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